Benjamin Vasquez Hernandez v. State

• Court: Court of Appeals of Texas
• Decided: February 14, 2019
• Docket: 13-19-00006-CR
• Status: Published

Opinion

NUMBER 13-19-00006-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

BENJAMIN VASQUEZ HERNANDEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee. ____________________________________________________________

On appeal from the 398th District Court of Hidalgo County, Texas. ____________________________________________________________

MEMORANDUM OPINION Before Justices Benavides, Longoria, and Hinojosa Memorandum Opinion by Justice Longoria

Appellant, Benjamin Vasquez Hernandez, attempted to perfect an appeal from a

conviction for murder. We dismiss the appeal for want of jurisdiction.

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).

The trial court imposed sentence in this matter on October 20, 2014. Appellant

filed his notice of appeal on January 3, 2019. On January 4, 2019, the Clerk of this Court

notified appellant that it appeared that the appeal was not timely perfected and 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. Appellant has not filed a response to the Court’s

directive.

Unless a motion for new trial has been 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 has been 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.

Appellant’s notice of appeal, filed more than four years after sentence was

imposed, was untimely, and accordingly, we lack jurisdiction over the appeal. See

Slaton, 981 S.W.2d at 210. 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.

2 CODE CRIM. PROC. ANN. art. 11.07, § 3(a) (West, Westlaw through 2017 1st C.S); see also

Ex parte Garcia, 988 S.W.2d 240 (Tex. Crim. App. 1999).

The appeal is DISMISSED FOR WANT OF JURISDICTION.

NORA L. LONGORIA Justice

Do not publish. See TEX. R. APP. P. 47.2(b).

Delivered and filed the 14th day of February, 2019.