Antonio Andres Garcia v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: December 7, 2023
• Docket: 13-23-00454-CR
• Status: Published

Opinion

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

2 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