Rogelio Martinez v. State

NUMBER 13-20-00273-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ROGELIO MARTINEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 197th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Perkes
Memorandum Opinion by Justice Longoria
On June 24, 2020, Rogelio Martinez filed a notice of appeal from a judgment
rendered in cause number 2011-DCR-2120-C in the 197th District Court of Cameron
County, Texas. According to the judgment, appellant was convicted of the first-degree
felony offense of burglary of a habitation and was sentenced to ninety-nine years of
imprisonment. See TEX. PENAL CODE ANN. § 30.02. The judgment, which was signed on
February 29, 2012, indicates that sentence was imposed in this case on February 27,
2012.
A timely notice of appeal is necessary to invoke this Court’s jurisdiction. Smith v.
State, 559 S.W.3d 527, 531 (Tex. Crim. App. 2018); Castillo v. State, 369 S.W.3d 196,
198 (Tex. Crim. App. 2012); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996).
In a criminal case, a defendant’s notice of appeal is due within thirty days after the day
sentence is imposed in open court, or ninety days after the sentence is imposed in open
court if the defendant timely files a motion for new trial. See TEX. R. APP. P. 26.2(a)(1),(2);
Smith, 559 S.W.3d at 531. While a court of appeals may extend the time to file the notice
of appeal, both the notice of appeal and the motion for extension of time must be filed
within fifteen days after the deadline for filing the notice of appeal. See id. R. 26.3. In the
absence of a timely filed notice of appeal, a court of appeals does not have jurisdiction to
address the merits of the appeal in a criminal case and can take no action other than to
dismiss the appeal for want of jurisdiction. Castillo, 369 S.W.3d at 198; Slaton v. State,
981 S.W.2d 208, 210 (Tex. Crim. App. 1998); Ex parte Matthews, 452 S.W.3d 8, 11 (Tex.
App.—San Antonio 2014, no pet.).
Here, appellant’s notice of appeal was filed more than eight years after sentence
was imposed and is untimely. See TEX. R. APP. P. 26.2(a)(1),(2). On July 15, 2020, the
Clerk of the Court notified appellant of this defect so that it could be corrected, if possible,
and advised appellant that the appeal would be dismissed if the defect was not cured.
See TEX. R. APP. P. 37.1. Appellant did not respond to the Court’s directive. We note that
only the Texas Court of Criminal Appeals has jurisdiction to grant appellant an out-of-time
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appeal for his felony conviction. See TEX. CODE CRIM. PROC. art. 11.07; Ater v. Eighth Ct.
of Apps., 802 S.W.2d 241 (Tex. Crim. App. 1991) (explaining that a writ of habeas corpus
pursuant to Article 11.07 of the Texas Code of Criminal Procedure governs out-of-time
appeals from felony convictions). This Court has no original habeas corpus jurisdiction in
criminal cases. See Bd. of Pardons and Paroles ex rel. Keene v. Ct. of Apps. for the
Eighth Dist., 910 S.W.2d 481, 483 (Tex. Crim. App. 1995); Ashorn v. State, 77 S.W.3d
405, 409 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). Accordingly, we dismiss the
appeal and all relief sought therein for lack of jurisdiction.
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
30th day of December, 2020.
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