Ex Parte Adelio Alexander Barahona

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-18-00328-CR
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EX PARTE ADELIO ALEXANDER BARAHONA
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On Appeal from the County Court at Law No. 5
Montgomery County, Texas
Trial Cause No. 18-30764
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MEMORANDUM OPINION
On July 3, 2018, the trial court signed an order denying Adelio Alexander
Barahona’s application for a writ of habeas corpus. See generally Tex. Code Crim.
Proc. Ann. art.11.09 (West 2015). On August 20, 2018, Barahona filed a notice of
appeal complaining about the trial court’s July 2018 ruling denying his application.
Subsequently, the State of Texas filed a motion to dismiss the appeal because
Barahona did not file his notice of appeal within the time permitted to perfect an
appeal.
1
In a criminal case, the notice of appeal must be filed within thirty days after
the day the trial court signs an appealable order. See Tex. R. App. P. 26.2(a)(1).1
Assuming that the trial court’s July 2018 order was a ruling on the merits of his
petition for habeas relief, his notice of appeal was due August 2, 2018. 2 See id. His
time for filing a motion for extension of time to perfect his appeal expired August
17, 2018. See Tex. R. App. P. 26.3. Barahona filed his notice of appeal on August
20, 2018, three days after the period in which he could have sought an extension for
filing his notice. If an appeal is not timely perfected, we may only dismiss the appeal.
See Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996). Accordingly, we
grant the State’s motion, and we dismiss the appeal.
APPEAL DISMISSED.
1
The notice of appeal is due ninety days after the day sentence is imposed in
open court if the defendant timely files a motion for new trial. See Tex. R. App. P.
26.2(a)(2). This provision does not apply to Barahona’s case because his sentence
was not imposed during the proceeding on his application seeking a writ of habeas
corpus. See Rodarte v. State, 860 S.W.2d 108, 109 (Tex. Crim. App. 1993).
2
We dismiss the appeal because the only order that Barahona challenged in
his appeal was signed more than thirty days before he filed his notice of appeal. See
Tex. R. App. P. 26.2(a)(1). We expressly decline to consider whether the trial court
ruled on the merits of the habeas application in its July 2018 order. See Ex parte
Hargett, 819 S.W.2d 866, 868 (Tex. Crim. App. 1991) (an order denying a habeas
application on its merits is appealable).
2
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HOLLIS HORTON
Justice
Submitted on October 30, 2018
Opinion Delivered October 31, 2018
Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.
3