Document Info

DocketNumber: 01-19-00222-CR

Filed Date: 8/20/2019

Status: Precedential

Modified Date: 8/21/2019

  • Opinion issued August 20, 2019
    In The
    Court of Appeals
    For The
    First District of Texas
    ————————————
    NO. 01-19-00222-CR
    ———————————
    BERNARD SYKES, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 179th District Court
    Harris County, Texas
    Trial Court Case No. 1512316
    MEMORANDUM OPINION
    After appellant, Bernard Sykes, pleaded guilty to the second-degree felony
    offense of delivery of a controlled substance without an agreed punishment
    recommendation, and pleaded true to the two enhancement paragraphs, the trial
    court placed appellant on deferred adjudication community supervision for a period
    of five years.1 After a hearing on the State’s motion to adjudicate guilt and revoke
    appellant’s community supervision, the trial court revoked appellant’s community
    supervision, adjudicated his guilt, and assessed his punishment at twenty-seven
    years’ confinement on November 14, 2018.2 The trial court certified appellant’s
    right of appeal. See TEX. R. APP. P. 25.2(a)(2). However, appellant did not file his
    pro se notice of appeal until March 19, 2019. The trial court then appointed him
    appellate counsel.      The State has moved to dismiss this appeal for want of
    jurisdiction as untimely. We agree, grant the motion, and dismiss this appeal for
    want of jurisdiction.
    A criminal defendant’s notice of appeal must be filed within thirty days after
    the sentence is imposed, or within ninety days after the sentence is imposed if the
    defendant has timely filed a motion for new trial. See TEX. R. APP. P. 26.2(a). The
    time for filing a notice of appeal may be extended if, within fifteen days of the
    deadline for filing the notice of appeal, an appellant files both a notice of appeal and
    a motion for an extension of time to file the notice of appeal. See TEX. R. APP. P.
    26.3; Douglas v. State, 
    987 S.W.2d 605
    , 606 (Tex. App.—Houston [1st Dist.] 1999,
    no pet.) (“The limited, 15-day extended time period applies to both the notice and
    1
    See TEX. HEALTH & SAFETY CODE ANN. §§ 481.104(a)(4), 481.114(a), (c) (West
    2011).
    2
    See TEX. PENAL CODE ANN. § 12.33(a) (West 2011).
    2
    the motion for extension; both must be filed within the 15-day time period.”). A
    notice of appeal that complies with the requirements of Rule 26 is essential to vest
    the court of appeals with jurisdiction. See Slaton v. State, 
    981 S.W.2d 208
    , 210 (Tex.
    Crim. App. 1998); Olivo v. State, 
    918 S.W.2d 519
    , 522–23 (Tex. Crim. App. 1996).
    If an appeal is not timely perfected, a court of appeals does not obtain jurisdiction to
    address the merits of the appeal. See 
    Slaton, 981 S.W.2d at 210
    .
    Here, the trial court signed appellant’s judgment revoking community
    supervision on November 14, 2018, and imposed the sentence that day. Appellant
    did not timely file a motion for new trial, making his notice of appeal due by
    December 14, 2018. See TEX. R. APP. P. 26.2(a)(1). Appellant’s pro se notice of
    appeal was not filed until March 19, 2019, 125 days after his sentence was imposed
    and, thus, was filed untimely. See TEX. R. APP. P. 26.3; 
    Douglas, 987 S.W.2d at 606
    . Under these circumstances, we can take no action other than to dismiss this
    appeal for want of jurisdiction.3 See 
    Slaton, 981 S.W.2d at 210
    ; 
    Olivo, 918 S.W.2d at 526
    .
    3
    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, but that remedy
    is beyond the jurisdiction of this Court. See TEX. CODE CRIM. PROC. ANN. art.
    11.07, § 3(a) (West 2015); see also Ex parte Garcia, 
    988 S.W.2d 240
    , 241 (Tex.
    Crim. App. 1999) (per curiam).
    3
    Accordingly, we grant the State’s motion and dismiss this appeal for want of
    jurisdiction. See TEX. R. APP. P. 43.2(f). We dismiss any other pending motions as
    moot.
    PER CURIAM
    Panel consists of Chief Justice Radack and Justices Keyes and Higley.
    Do not publish. TEX. R. APP. P. 47.2(b).
    4