Cole Peters v. State

NUMBER 13-14-00056-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
COLE PETERS, APPELLANT,
v.
THE STATE OF TEXAS, APPELLEE.
____________________________________________________________
On appeal from the 214th District Court
of Nueces County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Perkes
Memorandum Opinion Per Curiam
Appellant, Cole Peters, attempted to perfect an appeal from a conviction for theft.
We dismiss the appeal for want of jurisdiction.
Sentence in this matter was imposed on December 17, 2013. No motion for new
trial was filed. Notice of appeal was filed on January 27, 2014. On January 28, 2014,
the Clerk of this Court notified appellant that it appeared that the appeal was not timely
perfected. Appellant was advised 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. By
response filed on February 11, 2014, counsel states that she was appointed to represent
appellant on January 17, 2014, and because she was appointed to represent appellant
after the deadline to file the notice of appeal, she requests the Court deem the notice
timely.
Texas Rule of Appellate Procedure 26.2 provides that an appeal is perfected when
notice of appeal is filed within thirty days after the day sentence is imposed or suspended
in open court unless a motion for new trial is timely filed. TEX. R. APP. P. 26.2(a)(1). 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 was due to have been filed on or before January 16,
2014. See TEX. R. APP. P. 26.2(a)(2). Although the notice of appeal herein was filed
within the fifteen day time period, no such motion for extension of time was filed within
the fifteen day time period. See id.
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). “When
a notice of appeal is filed within the fifteen-day period but no timely motion for extension
of time is filed, the appellate court lacks jurisdiction.” Olivo, 918 S.W.2d at 522. Absent
a timely filed notice of appeal, a court of appeals does not obtain jurisdiction to address
the merits of the appeal in a criminal case and can take no action other than to dismiss
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the appeal for want of jurisdiction. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App.
1998).
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).
The appeal is DISMISSED FOR WANT OF JURISDICTION.
PER CURIAM
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
20th day of February, 2014.
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