Walter Allen Setzco v. the State of Texas

IN THE
TENTH COURT OF APPEALS
No. 10-22-00301-CR
WALTER ALLEN SETZCO,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Court at Law
Navarro County, Texas
Trial Court No. C41104-CR
MEMORANDUM OPINION
Appellant, Walter Allen Setzco, was convicted by a jury of the offense of assault
family violence with a prior conviction. See TEX. PENAL CODE ANN. § 22.01(b)(2)(A). The
trial court certified Setzco’s right of appeal and, on May 9, 2022, signed the judgment of
conviction. More than four months later, on September 13, 2022, Setzco filed his notice
of appeal challenging his May 9, 2022 conviction. Setzco included with his notice of
appeal a “Motion for Permission for Out of Time Appeal.”
In his “Motion for Permission for Out of Time Appeal,” Setzco recognizes that his
notice of appeal is untimely and requests that this Court grant him an out-of-time appeal.
See TEX. R. APP. P. 26.2(a)(1) (“The notice of appeal must be filed . . . within 30 days after
the day sentence is imposed or suspended in open court, or after the day the trial court
enters an appealable order.”); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996)
(“A timely notice of appeal is necessary to invoke a court of appeals’ jurisdiction). We
lack original habeas-corpus jurisdiction and, thus, have no authority to grant an out-of-
time appeal. See Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991)
(explaining that an application for writ of habeas corpus under article 11.07 of the Texas
Code of Criminal Procedure governs out-of-time appeals from felony convictions); Parr
v. State, 206 S.W.3d 143, 144-45 (Tex. App.—Waco 2006, no pet.); Ashorn v. State, 77 S.W.3d
405, 409 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d); see also Ex parte Sanders, No. 05-
20-00729-CR, 2021 Tex. App. LEXIS 2253, at *3 (Tex. App.—Dallas Mar. 24, 2021, no pet.)
(mem. op., not designated for publication).
Accordingly, we dismiss Setzco’s appeal for want of jurisdiction.
STEVE SMITH
Justice
Setzco v. State Page 2
Before Chief Justice Gray
Justice Johnson, and
Justice Smith
Appeal dismissed
Opinion delivered and filed September 21, 2022
Do not publish
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Setzco v. State Page 3