David Theriot v. State

Opinion

NUMBER 13-09-00654-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

______________________________________________________________

DAVID THERIOT, Appellant,

v.

THE STATE OF TEXAS, Appellee.

_____________________________________________________________

On appeal from the 329th District Court of Wharton County, Texas. ______________________________________________________________

MEMORANDUM OPINION

Before Justices Yañez, Rodriguez, and Garza Memorandum Opinion Per Curiam

On December 1, 2005, pursuant to a plea agreement, appellant was convicted of

the first-degree felony offense of murder. See TEX . PENAL CODE ANN . § 19.02(c) (Vernon

2003). On November 19, 2009, the trial court entered an order denying appellant’s “Application for Out of Time Appeal.”1 On December 9, 2009, appellant filed a pro se

notice of appeal regarding this post-judgment order. The trial court subsequently

appointed counsel to represent appellant on appeal.

On March 26, 2010, the Clerk of this Court notified appellant’s counsel that it

appeared that the clerk’s record did not contain an appealable judgment 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,

enclosing a copy of the 2005 judgment of conviction, in which he states that he has

“requested that the District Clerk prepare a record to forward to the Court of Appeals.”

In examining whether or not we have jurisdiction over an appeal, we determine “not

whether the appeal is precluded by law, but whether the appeal is authorized by law.”

Abbott v. State, 271 S.W.3d 694, 696-697 (Tex. Crim. App. 2008). Absent exceptions not

applicable to the instant case, a criminal defendant may only appeal a final judgment of

conviction. See id.; State v. Sellers, 790 S.W.2d 316, 321 n.4 (Tex. Crim. App. 1990); see

also TEX . CONST . art. V, § 6(a), (delineating the appellate jurisdiction of the appellate

courts); TEX . CODE CRIM . PROC . ANN . art. 44.02 (Vernon ) (stating that a criminal defendant

“has the right of appeal under the rules hereinafter prescribed”); TEX . R. APP. P. 25.2(a)(2)

(providing that a defendant “has the right of appeal under Code of Criminal Procedure

article 44.02 and these rules”). In such cases, the notice of appeal must be filed timely or

1 In a related original proceeding, this Court granted relator’s petition for writ of m andam us requesting this Court to com pel the trial court to rule on relator’s m otion for out of tim e appeal. See In re Theriot, No. 13-09-00598-CR, 2009 Tex. App. LEXIS 8917, at *1 (Tex. App.–Corpus Christi Nov. 13, 2009) (orig. proceeeding) (per curiam ) (not designated for publication).

2 we lack jurisdiction over the appeal. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App.

1996); see also Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998).

In this case, we have not found any rule or any statutory or constitutional provision

that would authorize an appeal from a post-judgment order denying a motion for out of time

appeal. Abbott, 271 S.W.3d at 697; see Staley v. State, 233 S.W.3d 337, 338 (Tex. Crim.

App. 2007) (dismissing the defendant's appeal because it was not authorized by law).

Moreover, any appeal of the underlying conviction, if indeed that is at issue herein, is more

than five years overdue. See TEX . R. APP. P. 26.2, 26.3.

Absent a judgment of conviction or other appealable order, we have no jurisdiction

over the appeal. See Abbott, 271 S.W.3d at 697. 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. TEX . R. APP. P. 47.2(b).

Delivered and filed the 27th day of May, 2010.