Dustin Merle Whaley v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 16, 2021
• Docket: 07-21-00132-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-21-00132-CR ________________________

DUSTIN MERLE WHALEY, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 47th District Court Potter County, Texas Trial Court No. 70,323-A; Honorable Dan L. Schaap, Presiding

June 16, 2021

MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and PARKER, JJ.

Pursuant to an open plea of guilty, Appellant, Dustin Merle Whaley, was convicted

of evading arrest with a vehicle 1 and sentenced to six years confinement. We affirmed

his conviction in Whaley v. State, No. 07-16-00126-CR, 2018 Tex. App. LEXIS 5612, at

*7 (Tex. App.—Amarillo July 24, 2018, no pet.) (mem. op., not designated for publication).

1 See TEX. PENAL CODE ANN. § 38.04(b)(2)(A) (West 2017). On June 8, 2021, Appellant filed a notice with this court requesting a new appeal and the

appointment appellate counsel. We dismiss the purported appeal for want of jurisdiction.

Appellant was sentenced on March 22, 2016. Because Appellant timely filed a

motion for new trial, his notice of appeal was due within ninety days after sentence was

imposed, i.e., by June 20, 2016. See TEX. R. APP. P. 26.2(a)(2). Appellant filed the instant

notice of appeal on June 8, 2021. Because the timely filing of a written notice of appeal

is a jurisdictional prerequisite to hearing an appeal, we have no option but to dismiss the

untimely appeal for want of jurisdiction. See Castillo v. State, 369 S.W.3d 196, 198 (Tex.

Crim. App. 2012).

Accordingly, we deny Appellant’s request for appointed counsel and dismiss this

appeal. 2

Per Curiam

Do not publish.

2 In his notice of appeal, Appellant states that he previously received ineffective assistance of

appellate counsel and, therefore, seeks a new appeal. Although this court has no authority to grant such a request, Appellant may be entitled to relief by filing an application for writ of habeas corpus returnable to the Court of Criminal Appeals. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (West 2015).