Daniel Hudson v. State

• Court: Court of Appeals of Texas
• Decided: February 20, 2003
• Docket: 07-03-00046-CR
• Status: Published

Opinion

NO. 07-03-0046-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

FEBRUARY 20, 2003

______________________________

DANIEL HUDSON, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2000-433479; HONORABLE CECIL G. PURYEAR, JUDGE

_______________________________

Before QUINN and REAVIS, JJ. and BOYD, S.J. ^{(footnote: -6)}

MEMORANDUM OPINION ^{(footnote: 1)}

Following a plea of guilty, appellant was convicted of aggravated assault with a deadly weapon and punishment was assessed at ten years confinement, suspended for ten years.  Appellant’s sentence was suspended on November 25, 2002, and an untimely motion for new trial was filed on January 17, 2003, as well as the notice of appeal.

By letter dated January 22, 2003, this Court requested that counsel for appellant show cause why the appeal should not be dismissed for want of jurisdiction pursuant to Rules 21.4(a) and 26.2(a) of the Texas Rules of Appellate Procedure.  In response, counsel filed a motion for leave to file an out of time appeal explaining that after his appointment on January 14, 2003, he relied on the trial court’s indication that sentence had been imposed on December 18, 2002, and filed a motion for new trial and notice of appeal on January 17, 2003.

We are not unsympathetic to counsel’s predicament; however, a timely and proper notice of appeal is necessary to invoke our jurisdiction.  Tex. R. App. P. 26.2(a).  This Court is without jurisdiction to address the merits of an appeal and can take no action other than to dismiss the appeal if it is not timely perfected.   See Slaton v. State, 981 S.W.2d 208, 210 (Tex.Cr.App. 1998).  Appellant may have a remedy by filing a post-conviction writ of habeas corpus returnable to the Texas Court of Criminal Appeals for consideration of an out-of-time appeal.  Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2003).

Accordingly, the purported appeal is dismissed for want of jurisdiction.

Don H. Reavis

   Justice

Do not publish.

FOOTNOTES

-6:

John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.

1:

Tex. R. App. P. 47.4.