Cesar Evaristo Duran v. State

• Court: Court of Appeals of Texas
• Decided: January 10, 2013
• Docket: 13-12-00616-CR
• Status: Published

Opinion

NUMBER 13-12-00616-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

CESAR EVARISTO DURAN, Appellant,

v.

THE STATE OF TEXAS, Appellee. ____________________________________________________________

On appeal from the 332nd District Court of Hidalgo County, Texas. ____________________________________________________________

MEMORANDUM OPINION Before Justices Garza, Benavides, and Perkes Memorandum Opinion Per Curiam

Appellant, Cesar Evaristo Duran, attempted to perfect an appeal from a conviction

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

The trial court imposed sentence in this matter on June 14, 2012. Appellant filed

a motion for new trial on July 12, 2012, and a notice of appeal on September 14, 2012.

On October 15, 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.1 Appellant

has not filed a response to the Court=s notice.

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 timely filed a motion for new trial. Therefore, his notice of appeal was

due to have been filed on or before September 12, 2012. See TEX. R. APP. P. 26.2(a)(2).

Although the notice of appeal herein was filed within the fifteen day time period, no such

motion for extension of time was filed within the fifteen day time period. See id.

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). AWhen a

notice of appeal is filed within the fifteen-day period but no timely motion for extension of

time is filed, the appellate court lacks jurisdiction.@ Olivo, 918 S.W.2d at 522. Absent a

1 The trial court=s certification of the defendant=s right to appeal shows that this is a plea-bargain case and the defendant has no right to appeal. See TEX. R. APP. P. 25.2(a)(2). On October 16, 2012, this Court notified appellant=s counsel of the trial court=s certification and ordered counsel to: (1) review the record; (2) determine whether appellant has a right to appeal; and (3) forward to this Court, by letter, counsel=s findings as to whether appellant has a right to appeal, or, alternatively, advise this Court as to the existence of any amended certification.

2 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 the 10th day of January, 2013.