Ernesto Berlanga v. State

• Court: Court of Appeals of Texas
• Decided: October 18, 2012
• Docket: 13-12-00270-CR
• Status: Published

Opinion

NUMBER 13-12-00270-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

ERNESTO BERLANGA, Appellant,

v.

THE STATE OF TEXAS, Appellee. ____________________________________________________________

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

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Benavides and Perkes Memorandum Opinion Per Curiam

Appellant, Ernesto Berlanga, attempted to perfect an appeal from a conviction for

murder. We dismiss the appeal for want of jurisdiction.

Sentence in this matter was imposed on September 1, 2011. No motion for new

trial was filed. On April 19, 2012, appellant’s trial counsel filed a “Written Notice of

Appeal in Support of Oral Notice of Appeal of Conviction Made on Record at Time of Sentencing,” which states that appellant gave his oral notice of appeal at sentencing on

September 1, 2011.

On August 29, 2012, the Clerk of this Court notified appellant that it appeared that

the appeal was not timely perfected. Appellant was advised 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 responded to this notice.

The Texas Rules of Appellate Procedure require a notice of appeal “must be given

in writing and filed with the trial court clerk.” Tex.R.App. P. 25.2(c)(1). Unless a motion

for new trial has been timely filed, a notice of appeal must be 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. See id. 26.2(a)(1). Where a timely motion for new trial has

been filed, the notice of appeal must be filed within ninety days after the day sentence is

imposed or suspended in open court. See id. 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 id. 26.3.

Appellant=s notice of appeal, filed more than seven months after sentence was

imposed, was untimely, and accordingly, we lack jurisdiction over the appeal. See

Slaton, 981 S.W.2d at 210. 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.

2 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 18th day of October, 2012.