Bernard Sykes v. State

• Court: Court of Appeals of Texas
• Decided: August 20, 2019
• Docket: 01-19-00222-CR
• Status: Published

Opinion

Opinion issued August 20, 2019

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-19-00222-CR ——————————— BERNARD SYKES, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court Harris County, Texas Trial Court Case No. 1512316

MEMORANDUM OPINION After appellant, Bernard Sykes, pleaded guilty to the second-degree felony

offense of delivery of a controlled substance without an agreed punishment

recommendation, and pleaded true to the two enhancement paragraphs, the trial

court placed appellant on deferred adjudication community supervision for a period of five years.1 After a hearing on the State’s motion to adjudicate guilt and revoke

appellant’s community supervision, the trial court revoked appellant’s community

supervision, adjudicated his guilt, and assessed his punishment at twenty-seven

years’ confinement on November 14, 2018.2 The trial court certified appellant’s

right of appeal. See TEX. R. APP. P. 25.2(a)(2). However, appellant did not file his

pro se notice of appeal until March 19, 2019. The trial court then appointed him

appellate counsel. The State has moved to dismiss this appeal for want of

jurisdiction as untimely. We agree, grant the motion, and dismiss this appeal for

want of jurisdiction.

A criminal defendant’s notice of appeal must be filed within thirty days after

the sentence is imposed, or within ninety days after the sentence is imposed if the

defendant has timely filed a motion for new trial. See TEX. R. APP. P. 26.2(a). The

time for filing a notice of appeal may be extended if, within fifteen days of the

deadline for filing the notice of appeal, an appellant files both a notice of appeal and

a motion for an extension of time to file the notice of appeal. See TEX. R. APP. P.

26.3; Douglas v. State, 987 S.W.2d 605, 606 (Tex. App.—Houston [1st Dist.] 1999,

no pet.) (“The limited, 15-day extended time period applies to both the notice and

1 See TEX. HEALTH & SAFETY CODE ANN. §§ 481.104(a)(4), 481.114(a), (c) (West 2011). 2 See TEX. PENAL CODE ANN. § 12.33(a) (West 2011).

2 the motion for extension; both must be filed within the 15-day time period.”). A

notice of appeal that complies with the requirements of Rule 26 is essential to vest

the court of appeals with jurisdiction. See Slaton v. State, 981 S.W.2d 208, 210 (Tex.

Crim. App. 1998); Olivo v. State, 918 S.W.2d 519, 522–23 (Tex. Crim. App. 1996).

If an appeal is not timely perfected, a court of appeals does not obtain jurisdiction to

address the merits of the appeal. See Slaton, 981 S.W.2d at 210.

Here, the trial court signed appellant’s judgment revoking community

supervision on November 14, 2018, and imposed the sentence that day. Appellant

did not timely file a motion for new trial, making his notice of appeal due by

December 14, 2018. See TEX. R. APP. P. 26.2(a)(1). Appellant’s pro se notice of

appeal was not filed until March 19, 2019, 125 days after his sentence was imposed

and, thus, was filed untimely. See TEX. R. APP. P. 26.3; Douglas, 987 S.W.2d at

606. Under these circumstances, we can take no action other than to dismiss this

appeal for want of jurisdiction.3 See Slaton, 981 S.W.2d at 210; Olivo, 918 S.W.2d

at 526.

3 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, but that remedy is beyond the jurisdiction of this Court. See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 3(a) (West 2015); see also Ex parte Garcia, 988 S.W.2d 240, 241 (Tex. Crim. App. 1999) (per curiam).

3 Accordingly, we grant the State’s motion and dismiss this appeal for want of

jurisdiction. See TEX. R. APP. P. 43.2(f). We dismiss any other pending motions as

moot.

PER CURIAM Panel consists of Chief Justice Radack and Justices Keyes and Higley.

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