Antonio Andres Garcia v. the State of Texas

NUMBER 13-23-00454-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ANTONIO ANDRES GARCIA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 156th District Court
of Bee County, Texas.
MEMORANDUM OPINION
Before Justices Longoria, Silva, and Peña
Memorandum Opinion by Justice Peña
This cause is before the Court on its own motion. On October 25, 2023, the Clerk
of this Court notified pro se appellant that it appeared the appeal was not timely perfected
in this matter. Pro se appellant was further informed the appeal would be dismissed if the
defect was not corrected within ten days from the date of receipt of the Court’s directive.
In response, pro se appellant filed a letter asking the Court to assert jurisdiction over the
matter; however, pro se appellant failed to cure the defect.
On February 18, 2004, the trial court issued a judgment adjudicating guilt. On
October 20, 2023, pro se appellant filed a notice of appeal of sentence.
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). Absent a
timely filed notice of appeal, a court of appeals does not have jurisdiction to address the
merits of the appeal and can take no action other than to dismiss the appeal for want of
jurisdiction. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998).
Unless a motion for new trial is timely filed, a notice of appeal must be filed within
thirty days after the day sentence is imposed or suspended in open court, or after the day
the trial court enters an appealable order. TEX. R. APP. P. 26.2(a)(1). Where a timely
motion for new trial is timely filed, the notice of appeal must be filed within ninety days
after the day sentence is imposed or suspended in open court. See id. 26.2(a)(2). 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.
Pro se appellant’s notice of appeal, filed many years after the sentence was
imposed, is untimely. Accordingly, we lack jurisdiction over the appeal. See Slaton, 981
S.W.2d at 210.
The Court, having examined and fully considered the documents on file and pro
se appellant’s failure to timely perfect his appeal, is of the opinion that the appeal should
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be dismissed for want of jurisdiction. Pro se 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); see also Ex parte Garcia, 988
S.W.2d 240 (Tex. Crim. App. 1999).
The appeal hereby is dismissed for want of jurisdiction.
L. ARON PEÑA JR.
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
7th day of December, 2023
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