Bertha Alicia Garza v. State

• Court: Court of Appeals of Texas
• Decided: August 20, 2012
• Docket: 13-12-00388-CR
• Status: Published

Opinion

NUMBER 13-12-00388-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

BERTHA ALICIA GARZA, APPELLANT,

v.

THE STATE OF TEXAS, APPELLEE. ____________________________________________________________

On appeal from the 370th District Court of Hidalgo County, Texas. ____________________________________________________________

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Garza and Vela Memorandum Opinion Per Curiam

Appellant, Bertha Alicia Garza, attempted to perfect an appeal from a conviction

for aggravated assault. We dismiss the appeal for want of jurisdiction.

Sentence in this matter was imposed on January 20, 2012, counsel filed a motion

for new trial on February 10, 2012, and notice of appeal was filed on June 4, 2012. On

June 18, 2012, 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.

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, her notice of appeal was

due to have been filed on or before April 19, 2012. See TEX. R. APP. P. 26.2(a)(2).

Appellant did not file a motion for extension of time to file her notice of appeal as permitted

by Texas Rule of Appellate Procedure 26.3 and did not file her notice of appeal until June

4, 2012.

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.

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. TEX. R. APP. P. 47.2(b).

Delivered and filed the 20th day of August, 2012.