Thomas Anthony Gutierrez v. the State of Texas

Opinion filed December 1, 2022
In The
Eleventh Court of Appeals
___________
No. 11-22-00297-CR
___________
THOMAS ANTHONY GUTIERREZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 385th District Court
Midland County, Texas
Trial Court Cause No. CR53583
MEMORAND UM OPI NI ON
The jury convicted Thomas Anthony Gutierrez, Appellant, of the offenses of
assault family violence by strangulation (Count I), sexual assault of a child (Counts
II, IV, V, and VI), and indecency with a child by contact (Counts III and VII), and it
assessed Appellant’s punishment at the maximum available for each offense. The
trial court sentenced Appellant accordingly and ordered three of the life sentences to
run consecutively to the other counts and to each other. Appellant subsequently filed
a motion for new trial and a notice of appeal. Because Appellant did not timely file
a notice of appeal, we must dismiss the appeal.
Pursuant to the Texas Rules of Appellate Procedure, a notice of appeal is due
to be filed either (1) within thirty days after the date that sentence is imposed or
suspended in open court or (2) if the defendant timely files a motion for new trial,
within ninety days after the date that sentence is imposed or suspended in open court.
TEX. R. APP. P. 26.2(a). A notice of appeal must be in writing and filed with the clerk
of the trial court. TEX. R. APP. P. 25.2(c)(1). The documents on file in this appeal
indicate that Appellant’s sentence was imposed on July 11, 2022, that Appellant
timely filed a motion for new trial on August 9, 2022, and that Appellant’s notice of
appeal was filed with the clerk of the trial court on October 28, 2022—109 days after
his sentence was imposed. The notice of appeal was therefore untimely.
Absent a timely filed notice of appeal or the granting of a timely motion for
extension of time, we do not have jurisdiction to entertain an appeal. 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); Rodarte v. State, 860 S.W.2d 108, 110 (Tex. Crim. App.
1993). Because the notice of appeal was not timely filed, we have no jurisdiction
over this appeal and must dismiss it. See Slaton, 981 S.W.2d at 210.
When the appeal was docketed in this court, we notified Appellant that the
notice of appeal appeared to be untimely, and we informed him that this appeal may
be dismissed for want of jurisdiction. We requested that Appellant file a response
showing grounds upon which this appeal could continue. Appellant has not filed a
response.
We dismiss this appeal for want of jurisdiction.
December 1, 2022 PER CURIAM
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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