Ernesto Benavides Jr. v. State

Opinion

NUMBER 13-19-00197-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

ERNESTO BENAVIDES JR., Appellant,

v.

THE STATE OF TEXAS, Appellee. ____________________________________________________________

On appeal from the 107th District Court of Cameron County, Texas. ____________________________________________________________

MEMORANDUM OPINION Before Justices Benavides, Hinojosa, and Perkes Memorandum Opinion by Justice Benavides

Appellant Ernesto Benavides Jr., proceeding pro se, filed a notice of appeal from

the judgment rendered against him on October 28, 2013 in cause number 2013-DCR-

0654-A in the 107th District Court of Cameron County, Texas. Specifically, appellant

filed a “Motion Requesting Out-of-Time Appeal Showing Cause and Prejudice.” We

dismiss the appeal for want of jurisdiction. Texas Rule of Appellate Procedure 26.2 provides that an appeal is perfected when

the notice of appeal is filed within thirty days after the day sentence is imposed or

suspended in open court, or after the day the trial court enters an appealable order. TEX.

R. APP. P. 26.2(a)(1); see Rodarte v. State, 860 S.W.2d 108, 109 (Tex. Crim. App. 1993);

Lair v. State, 321 S.W.3d 158, 159 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). This

period is extended to ninety days after the sentence is imposed or suspended in open

court if the defendant timely files a motion for new trial. TEX. R. APP. P. 26.2(a)(2); Welsh

v. State, 108 S.W.3d 921, 922 (Tex. App.—Dallas 2003, no pet.). The time to file the

notice of appeal 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 id. R. 26.3. 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); Olivo v.

State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); Pickens v. State, 105 S.W.3d 746,

748 (Tex. App.—Austin 2003, no pet.).

On April 30, 2019, the Clerk of this Court notified appellant that it appeared that

his appeal was not timely perfected. The Clerk advised appellant 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. In response, appellant filed a motion to establish jurisdiction, or in

the alternative, for an extension of time to file a response to this Court’s defect notice. In

sum, appellant contends that his notice of appeal is timely and that we should address

his appeal to remedy a lack of due process in this case.

2 Based on the documents on file in this case, appellant’s notice of appeal was filed

more than five years too late. See generally TEX. R. APP. P. 26.2(a). We note that

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); see also Ex parte Garcia, 988 S.W.2d 240, 241 (Tex. Crim. App. 1999).

We DISMISS this appeal and all pending motions for want of jurisdiction.

GINA M. BENAVIDES, Justice

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

Delivered and filed the 13th day of June, 2019.