Erika Soledad Montes v. State

• Court: Court of Appeals of Texas
• Decided: February 21, 2013
• Docket: 13-12-00705-CR
• Status: Published

Opinion

NUMBER 13-12-00705-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 driving while intoxicated. We dismiss the appeal for want of jurisdiction.

The trial court issued a judgment which suspended sentence on September 24,

2012. No motion for new trial was filed. Notice of appeal was filed on October 26, 20121. On November 21, 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 24,

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

1 Although the notice of appeal has a file stamp date of November 8, 2012, the docket sheet states that the notice of appeal was received on October 26, 2012 but was file stamped late because it was placed in incoming mail for two weeks. 2 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. 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.