David Boston v. State

• Court: Court of Appeals of Texas
• Decided: July 31, 2008
• Docket: 13-08-00094-CR
• Status: Published

Opinion

NUMBER 13-08-00094-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ______________________________________________________________

DAVID BOSTON, Appellant,

v.

THE STATE OF TEXAS, Appellee. _____________________________________________________________

On appeal from the 214th District Court of Nueces County, Texas. ______________________________________________________________

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Rodriguez and Benavides Memorandum Opinion Per Curiam

Appellant, David Boston, attempted to perfect an appeal from a conviction for

possession of cocaine. We dismiss the appeal for want of jurisdiction.

Sentence in this matter was imposed on January 7, 2008. No motion for new trial

was filed. Notice of appeal was filed on February 13, 2008. On February 19, 2008, 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.

Texas Rule of Appellate Procedure 26.2 provides that an appeal is perfected when

notice of appeal is filed within thirty days after the day sentence is imposed or suspended

in open court unless a motion for new trial is timely filed. TEX . R. APP. P. 26.2(a)(1). 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. Although the notice of

appeal herein was filed within the 15-day time period for filing a motion for extension of

time to file notice of appeal, no such motion for extension of time was filed. 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). “When 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

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 .

2 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).

Memorandum Opinion delivered and filed this the 31st day of July, 2008.