Eugenio Espinoza Martinez v. State

Opinion

NUMBER 13-12-00541-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

EUGENIO ESPINOZA MARTINEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee. ____________________________________________________________

On appeal from the 370th District Court of Hidalgo County, Texas. ____________________________________________________________

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

This cause is before the Court on appellant’s pro se motion for leave to file

out-of-time appeal, appellant’s pro se motion to file out-of-time notice of appeal, and

State’s motion to dismiss appeal for want of jurisdiction. Appellant, Eugenio Espinoza

Martinez, was convicted of aggravated assault and tampering with or fabricating physical

evidence. Sentence in this matter was imposed on November 17, 2010. No motion for new

trial was filed. Notice of appeal was filed on July 30, 2012. On September 7, 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.

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. TEX. R. APP. P. 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 twenty months after sentence was

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

Slaton, 981 S.W.2d at 210. Accordingly, appellant’s pro se motion for leave to file

out-of-time appeal is DENIED, appellant’s pro se motion to file out-of-time appeal is

DENIED, and State’s motion to dismiss appeal for want of jurisdiction is GRANTED.

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).

2 The appeal is DISMISSED FOR WANT OF JURISDICTION.

Do not publish. TEX. R. APP. P. 47.2(b). Delivered and filed the 18th day of October, 2012.