Daniel Ruiz Garcia v. State

• Court: Court of Appeals of Texas
• Decided: May 21, 2009
• Docket: 13-08-00672-CR
• Status: Published

Opinion

NUMBER 13-08-00672-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ______________________________________________________________

DANIEL RUIZ GARCIA, Appellant,

v.

THE STATE OF TEXAS, Appellee. _____________________________________________________________

On Appeal from the 206th District Court of Hidalgo County, Texas. ______________________________________________________________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Vela Memorandum Opinion Per Curiam

Appellant, Daniel Ruiz Garcia, attempted to perfect an appeal from a conviction for

murder. We dismiss the appeal for want of jurisdiction. Sentence in this matter was imposed on August 6, 2008. No motion for new trial

was filed. Appellant filed a pro se notice of appeal on November 20, 2008, stating that the

notice of appeal was being filed beyond the thirty day period due to counsel’s failure to file

a notice of appeal. On March 6, 2009, the Clerk of this Court notified appellant that it

appeared that the appeal was not timely perfected. Appellant was advised 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. Appellant has not responded to this 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’s notice of appeal, filed more than three months after sentence was

imposed, was untimely, and accordingly, we lack jurisdiction over the appeal. See Slaton,

981 S.W.2d at 210. 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. See TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and filed this the 21st day of May, 2009.