Carlos Javier Hernandez v. State

• Court: Court of Appeals of Texas
• Decided: October 28, 2019
• Docket: 05-19-01265-CR
• Status: Published

Opinion

Dismissed; Opinion Filed October 28, 2019

In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-01265-CR

CARLOS JAVIER HERNANDEZ, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 3 Dallas County, Texas Trial Court Cause No. F17-48267-J

MEMORANDUM OPINION Before Justices Myers, Osborne, and Nowell Opinion by Justice Myers On July 31, 2018, Carlos Javier Hernandez was sentenced to fifty years in prison for

continuous sexual abuse of a young child. On October 17, 2019, appellant filed a notice of appeal

in this Court along with a motion for an out of time appeal.

A timely filed notice of appeal is required to invoke this Court’s jurisdiction. Castillo v.

State, 369 S.W.3d 196, 198 (Tex. Crim. App. 2012). In the absence of a timely filed notice of

appeal, the Court has no option other than to dismiss the appeal. Id. A defendant perfects an appeal

by filing with the trial court clerk, within thirty days after the date sentence was imposed, or within

ninety days after sentencing if the defendant timely filed a motion for new trial, a written notice of

appeal showing his desire to appeal. See TEX. R. APP. P. 25.2(b), (c), 26.2(a). When a criminal defendant misses the deadline to file a notice of appeal following

conviction, intermediate appellate courts may obtain jurisdiction only if the Texas Court of

Criminal Appeals grants the defendant the ability to pursue an out-of-time appeal. See Ater v.

Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (orig. proceeding); Ex

parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997) (explaining that granting an out-of-

time appeal “restores the pendency of the direct appeal”). To be entitled to an out-of-time appeal,

the defendant must file an application for a writ of habeas corpus with the clerk of the convicting

court. In re Escareno, 297 S.W.3d 288, 289 (Tex. Crim. App. 2009); see TEX. CODE CRIM. PROC.

ANN. art. 11.07, §§ 1, 3, 5. The application is then transmitted to the Texas Court of Criminal

Appeals, which has sole jurisdiction to grant the relief of an out-of-time appeal. See TEX. CODE

CRIM. PROC. ANN. art. 11.07, §§ 1, 3, 5; Ater, 802 S.W.2d at 243 (“We are the only court with

jurisdiction in final post-conviction felony proceedings.”).

Here, appellant’s notice of appeal was untimely, leaving us no other option than to dismiss

the appeal. To the extent appellant seeks an out of time appeal, he raises his complaint in the

improper forum. See TEX. CODE CRIM. PROC. ANN. art. 11.07; In re McAfee, 53 S.W.3d 715, 717

(Tex. App.—Houston [1st Dist.] 2001, orig. proceeding) (“Article 11.07 contains no role for the

courts of appeals; the only courts referred to are the convicting court and the Court of Criminal

Appeals.”).

We dismiss the appeal.

/Lana Myers/ LANA MYERS Do Not Publish JUSTICE TEX. R. APP. P. 47.2(b) 191265F.U05

–2– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

CARLOS JAVIER HERNANDEZ, On Appeal from the Criminal District Court Appellant No. 3, Dallas County, Texas Trial Court Cause No. F17-48267-J. No. 05-19-01265-CR V. Opinion delivered by Justice Myers, Justices Osborne and Nowell participating. THE STATE OF TEXAS, Appellee

Based on the Court’s opinion of this date, we DISMISS this appeal.

Judgment entered this 28th day of October, 2019.

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