David Harley Bailey v. State

• Court: Court of Appeals of Texas
• Decided: February 4, 2010
• Docket: 13-09-00383-CR
• Status: Published

Opinion

NUMBER 13-09-00383-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

DAVID HARLEY BAILEY, APPELLANT,

v.

THE STATE OF TEXAS, APPELLEE.

On Appeal from the 138th District Court of Cameron County, Texas.

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Yañez and Vela Memorandum Opinion Per Curiam

On June 23, 2009, appellant, David Harley Bailey, filed a pro se notice of appeal

from judgments of conviction issued on July 1, 1988. We dismiss the appeal for want of

jurisdiction.1

1 Appellant has previously filed several original proceedings attacking these convictions. See In re Bailey, Nos. 13-09-00375-CR, 13-09-00376-CR, 13-09-00377-CR, & 13-09-00378-CR2009, Tex. App. LEXIS 5262, *1 (Tex. App.–Corpus Christi July 9, 2009, orig. proceeding) (dism issing m andam us for want of 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). Absent a timely

filed notice of appeal, a court of appeals does not have jurisdiction to address the merits

of the appeal 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).

On July 10, 2009, 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. Appellant’s

counsel filed a response to this notice in which he asserts that he examined the district

clerk’s file and found that no notice of appeal had been filed. Appellant also filed a pro se

response in which he contends that he sent several letters to the trial court in July of 1988

which should have been treated as a timely filed notice of appeal. See, e.g., Palma v.

State, 76 S.W.3d 638, 641 (Tex. App.–Corpus Christi 2002, pet. ref’d) (holding that where

an appellant has timely filed a document with the clerk of the trial court that demonstrates

his desire to appeal, that document should be construed as a notice of appeal). Appellant

included copies of these letters which are not file-stamped but appear instead to include

hand-written dates of receipt. Appellant also includes a letter that he allegedly received

jurisdiction where appellant contended that the district clerk did not forward docum ents allegedly constituting notices of appeal); In re Bailey, Nos. 13-08-00240-CR, 13-08-00241-CR, 13-08-00242-CR, & 13-08-00243-CR, 2008 Tex. App. LEXIS 3169, *1 (Tex. App.–Corpus Christi May 1, 2008, orig. proceeding) (denying m andam us where appellant was seeking post-conviction relief from a final felony conviction); In re Bailey, Nos. 13-06-421-CR, 13-06-422-CR, 13-06-423-CR, 13-06-424-CR, 2006 Tex. App. LEXIS 6786, *1 (Tex. App.–Corpus Christi July 31, 2006, orig. proceeding) (denying m andam us for insufficient record where appellant sought to com pel the trial court to correct the judgm ent in the underlying crim inal m atters to reflect concurrent sentencing and to rem ove an accum ulation order from the judgm ent).

2 from the trial court, dated July 18, 1988, which denies appellant’s request to run his

sentences concurrently and advises appellant that the court followed the plea bargain and

imposed sentences according to the plea bargain, and denies appellant’s request for

appeal.

As an initial matter, we note that appellant is not entitled to hybrid representation.

See Marshall v. State, 210 S.W.3d 618, 620 (Tex. Crim. App. 2006). Moreover, leaving

aside the issue of whether appellant has the substantive right to appeal under the

circumstances described herein, we conclude that the documents currently before us do

not establish that appellant’s appeal was timely perfected. Texas Rule of Appellate

Procedure 25.2(c)(1) states that an appellant perfects his appeal by filing a written notice

“with the trial court clerk.” TEX . R. APP. P. 25.2(c)(1). Nothing in the record before us

indicates that the letters at issue were timely filed with the clerk of the trial court. The court

of criminal appeals requires strict compliance with appellate procedure governing criminal

appeals. Olivo, 918 S.W.2d at 524-25; State v. Zavala, 17 S.W.3d 356, 357-58 (Tex.

App.–Corpus Christi 2000, pet ref'd).

Appellant’s notice of appeal, filed more than twenty years 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).

3 The appeal is DISMISSED FOR WANT OF JURISDICTION. Appellant’s motion to

proceed on appeal pro se is DISMISSED AS MOOT.

PER CURIAM

Do not publish. See TEX . R. APP. P. 47.2(b).

Delivered and filed the 4th day of February, 2010.