Charles A. Beery v. State

• Court: Court of Appeals of Texas
• Decided: March 2, 2006
• Docket: 07-06-00005-CR
• Status: Published

Opinion

NO. 07-06-0005-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

MARCH 2, 2006

______________________________

CHARLES ALLEN BEERY, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE _________________________________

FROM THE 320^TH DISTRICT COURT OF POTTER COUNTY;

NO. 50,160-D; HONORABLE DON EMERSON, JUDGE _______________________________

Before QUINN, C.J. and REAVIS and CAMPBELL, JJ.

MEMORANDUM OPINION

Appellant, Charles A. Beery, seeks to appeal his conviction of aggravated sexual assault of a child and accompanying sentence of 99 years confinement in the Texas Department of Criminal Justice Institutional Division. We dismiss the appeal for want of jurisdiction.

In a criminal case, appeal is perfected by timely filing a sufficient notice of appeal. TEX. R. APP. P. 25.2(b); 26.2. A timely filed notice of appeal is essential to invoke our appellate jurisdiction. Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998); Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App. 1996).

The record before us reflects appellant was sentenced on September 7, 2005. The notice of appeal was due on or before October 7, 2005. TEX. R. APP. P. 26.2(a). Appellant did not file his notice of appeal until January 19, 2006. Appellant's failure to file a timely notice of appeal prevents this court from having jurisdiction over his appeal. Accordingly, the appeal is dismissed for want of jurisdiction. ⁽¹⁾ TEX. R. APP. P. 39.8, 40.2, 43.2(f).

James T. Campbell

Justice

Do not publish.

1. 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. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (Vernon 2005); see also Ex parte Garcia, 988 S.W.2d 240 (Tex.Crim.App. 1999).

It also found an order made after the trial court lost jurisdiction over the case was void. Id. at 940. ⁽¹⁾ Appellant has raised no objection to the relief sought by the State.

We grant the State's motion, abate this appeal and remand the case to the trial court. The trial court is directed to consider and make those orders it finds proper. Any order shall be filed in such time that a supplemental clerk's record may be filed in this court within thirty days of this order. On the filing of a supplemental clerk's record the appellate record will be complete. Appellant may file a substitute or supplemental brief within thirty days of that date. Tex. R. App. P. 38.6(a). The State's brief shall be due within sixty days from the filing of the supplemental clerk's record.

Per Curiam

1. The continued vitality of Green may be uncertain. Urias v. State, No. PD-0335-03, 2005 Tex. Crim. App. Lexis 251 (Tex.Crim.App. February 16, 2005) (Keller, P.J., dissenting from denial of motion for rehearing).