Adam Fuentes v. State

• Court: Court of Appeals of Texas
• Decided: August 25, 2009
• Docket: 13-08-00741-CR
• Status: Published

Opinion

NUMBER 13-08-00741-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ______________________________________________________________

ADAM FUENTES, Appellant,

v.

THE STATE OF TEXAS, Appellee. _____________________________________________________________

On appeal from the 117th District Court of Nueces County, Texas. ______________________________________________________________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Yañez and Benavides Memorandum Opinion Per Curiam

Appellant, Adam Fuentes, attempted to perfect an appeal from a conviction for

burglary of a habitation. We dismiss the appeal for want of jurisdiction.

Sentence in this matter was imposed on March 14, 2008, counsel filed a motion for

new trial on April 10, 2008, and notice of appeal was filed on June 17, 2008. On August 10, 2009, the Clerk of this Court notified appellant that it appeared that the appeal was not

timely perfected. Appellant was advised that the appeal would be dismissed if the defect

was not corrected within ten days from the date of receipt of the Court’s directive. By

response filed on August 17, 2009, counsel indicated that although appellant’s notice of

appeal was filed during the fifteen day grace period, a motion requesting an extension of

time to file the notice of appeal was not made.

Texas Rule of Appellate Procedure 26.2 provides that an appeal is perfected when

notice of appeal is filed within thirty days after the day sentence is imposed or suspended

in open court unless a motion for new trial is timely filed. TEX . R. APP. P. 26.2(a)(1). Where

a timely motion for new trial has been filed, notice of appeal shall be filed within ninety days

after the sentence is imposed or suspended in open court. TEX . R. APP. P. 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 TEX . R. APP. P. 26.3.

Appellant timely filed a motion for new trial. Therefore, his notice of appeal was due

to have been filed on or before June 12, 2008. See TEX . R. APP. P. 26.2(a)(2). Appellant

did not file a motion for extension of time to file his notice of appeal as permitted by Texas

Rule of Appellate Procedure 26.3 and did not file his notice of appeal until June 17, 2008.

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 obtain 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. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App.

2 1998). 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) (Vernon 2005); see also Ex parte Garcia, 988 S.W.2d 240

(Tex. Crim. App. 1999).

The appeal is DISMISSED FOR WANT OF JURISDICTION.

PER CURIAM

Do not publish. See TEX . R. APP. P. 47.2(b). Memorandum Opinion delivered and filed this the 25th day of August, 2009.