David Martinez Jr. v. State

NUMBER 13-14-00557-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
DAVID MARTINEZ JR., Appellant,
v.
THE STATE OF TEXAS, Appellee.
____________________________________________________________
On appeal from the 107th District Court
of Cameron County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Perkes
Memorandum Opinion Per Curiam
Appellant, David Martinez Jr., attempted to perfect an appeal from a conviction for
aggravated assault. We dismiss the appeal for want of jurisdiction.
This Court’s appellate jurisdiction in a criminal case is invoked by a timely filed
notice of appeal. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Absent
a timely filed notice of appeal, a court of appeals does not have jurisdiction to address the
merits of the appeal and can take no action other than to dismiss the appeal for want of
jurisdiction. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998).
The trial court imposed sentence in this matter on March 28, 2013. Appellant filed
an “Out of Time Notice of Appeal” on September 23, 2014. On September 26, 2014, the
Clerk of this Court notified appellant that it appeared that this Court does not have
jurisdiction and that the appeal would be dismissed if the defect was not corrected within
ten days from the date of receipt of the Court’s directive. Appellant has not filed a
response to the Court’s directive.
Unless a motion for new trial has been timely filed, a notice of appeal must be filed
within thirty days after the day sentence is imposed or suspended in open court, or after
the day the trial court enters an appealable order. TEX. R. APP. P. 26.2(a)(1). Where a
timely motion for new trial has been filed, the notice of appeal must be filed within ninety
days after the day sentence is imposed or suspended in open court. See id. 26.2(a)(2).
The time within which to file the notice may be enlarged if, within fifteen days after the
deadline for filing the notice, the party files the notice of appeal and a motion complying
with Rule 10.5(b) of the Texas Rules of Appellate Procedure. See id. 26.3.
Appellant’s notice of appeal, filed more than sixteen months after sentence was
imposed, was untimely, and accordingly, we lack jurisdiction over the appeal. See
Slaton, 981 S.W.2d at 210. Appellant may be entitled to an out-of-time appeal by filing
a post-conviction writ of habeas corpus returnable to the Texas Court of Criminal Appeals;
however, the availability of that remedy is beyond the jurisdiction of this Court. See TEX.
CODE CRIM. PROC. ANN. Art. 11.07, § 3(a) (Vernon 2005); see also Ex parte Garcia, 988
S.W.2d 240 (Tex. Crim. App. 1999).
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The appeal is DISMISSED FOR WANT OF JURISDICTION. All pending motions
are likewise DISMISSED.
PER CURIAM
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
6th day of November, 2014.
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