Erika Soledad Montes v. State

Opinion

NUMBER 13-12-00706-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

ERIKA SOLEDAD MONTES, Appellant,

v.

THE STATE OF TEXAS, Appellee. ____________________________________________________________

On appeal from the County Court at Law No. 1 of Hidalgo County, Texas. ____________________________________________________________

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

Appellant, Erika Soledad Montes, attempted to perfect an appeal from a

conviction for reckless driving. We dismiss the appeal for want of jurisdiction.

The trial court issued a judgment which suspended sentence on September 25,

2012. No motion for new trial was filed. Notice of appeal was filed on October 26,

2012. On November 27, 2012, 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 has not filed a response to the Court’s directive.

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). Where a timely motion for new trial has been filed, notice of appeal shall be

filed within ninety days after the sentence is imposed or suspended in open court. TEX.

R. APP. P. 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

TEX. R. APP. P. 26.3.

Appellant’s notice of appeal was due to have been filed on or before October 25,

2012. See TEX. R. APP. P. 26.2(a)(2). Although the notice of appeal herein was filed

within the fifteen day time period, no such motion for extension of time was filed within

the fifteen day time period. 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). 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;

2 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 21st day of February, 2013.