Ernesto Berlanga v. State

• Court: Court of Appeals of Texas
• Decided: March 21, 2013
• Docket: 13-13-00082-CR
• Status: Published

Opinion

NUMBER 13-13-00082-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 Longoria Memorandum Opinion Per Curiam

This cause is before the Court on appellant’s “Motion to Proceed with Appeal Out

of Time.” Appellant, Ernesto Berlanga, was convicted of murder and sentenced to life in

prison. Sentence in this matter was imposed on September 1, 2011. A motion for new

trial was not filed, therefore Berlanga’s notice of appeal was due on or before October 3, 2011 1 . See TEX. R. APP. P. 4.1 (a), 26.2(a). Berlanga’s appeal was not filed until

January 23, 2009. Because the original notice of appeal was not filed timely, this Court

lacked jurisdiction to consider the appeal and dismissed it for want of jurisdiction on

October 18, 2012. See Berlanga v. State of Texas, No. 13-12-00270-CR, 2012 Tex.

App. LEXIS 8751 (Tex. App.—Corpus Christi Oct. 18, 2012, no pet.) (per curiam mem.

op.).

On January 7, 2013, appellant filed another notice of appeal from the murder

conviction. Appellant’s motion requests that he be allowed to proceed with his appeal.

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 second notice of appeal, filed more than fifteen months after sentence

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

1 Because the thirtieth day fell on a Saturday, appellant had until the following Monday, October 3, 2011 to file the notice of appeal. See TEX. R. APP. P. 4.1. 2 Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998). Accordingly, appellant’s

“Motion to Proceed with Appeal Out of Time” is DENIED.

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 March, 2013.