Brian Derrick v. State

• Court: Court of Appeals of Texas
• Decided: February 18, 2015
• Docket: 09-15-00052-CR
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-15-00052-CR ____________________

BRIAN DERRICK, Appellant

V.

THE STATE OF TEXAS, Appellee _______________________________________________________ ______________

On Appeal from the 88th District Court Hardin County, Texas Trial Cause No. 21253 ________________________________________________________ _____________

MEMORANDUM OPINION

The trial court sentenced Brian Derrick on October 16, 2014. Notice of

appeal was due to be filed on January 14, 2015, because Derrick timely filed a

motion for new trial. See Tex. R. App. P. 26.2(a)(2). Derrick filed a notice of

appeal on January 29, 2015, but he did not file a motion for extension of time

within fifteen days after the deadline for filing the notice of appeal. See Tex. R.

App. P. 26.3. We notified the parties that Derrick filed his notice of appeal too late

to perfect an appeal. See Tex. R. App. P. 25.2(b). Derrick failed to establish that

his notice of appeal was timely filed or that the Texas Court of Criminal Appeals

granted an out-of-time appeal as habeas relief. See generally Tex. R. App. P. 73.

The notice of appeal was not timely filed. See Tex. R. App. P. 26.2(a)(2).

Neither this Court nor the trial court has the authority to grant an out-of-time

appeal. See Olivo v. State, 918 S.W.2d 519, 525 n.8 (Tex. Crim. App. 1996)

(Article 11.07 of the Texas Code of Criminal Procedure provides the exclusive

post-conviction remedy in final felony convictions in Texas courts). “If a notice of

appeal is not timely filed, the court of appeals has no option but to dismiss the

appeal for lack of jurisdiction.” Castillo v. State, 369 S.W.3d 196, 198 (Tex. Crim.

App. 2012). Accordingly, we dismiss the appeal for want of jurisdiction.

APPEAL DISMISSED.

________________________________ LEANNE JOHNSON Justice

Submitted on February 17, 2015 Opinion Delivered February 18, 2015 Do Not Publish

Before Kreger, Horton, and Johnson, JJ.