Ex Parte Adelio Alexander Barahona

• Court: Court of Appeals of Texas
• Decided: October 31, 2018
• Docket: 09-18-00328-CR
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-18-00328-CR ____________________

EX PARTE ADELIO ALEXANDER BARAHONA

_______________________________________________________ ______________

On Appeal from the County Court at Law No. 5 Montgomery County, Texas Trial Cause No. 18-30764 ________________________________________________________ _____________

MEMORANDUM OPINION

On July 3, 2018, the trial court signed an order denying Adelio Alexander

Barahona’s application for a writ of habeas corpus. See generally Tex. Code Crim.

Proc. Ann. art.11.09 (West 2015). On August 20, 2018, Barahona filed a notice of

appeal complaining about the trial court’s July 2018 ruling denying his application.

Subsequently, the State of Texas filed a motion to dismiss the appeal because

Barahona did not file his notice of appeal within the time permitted to perfect an

appeal.

1 In a criminal case, the notice of appeal must be filed within thirty days after

the day the trial court signs an appealable order. See Tex. R. App. P. 26.2(a)(1).1

Assuming that the trial court’s July 2018 order was a ruling on the merits of his

petition for habeas relief, his notice of appeal was due August 2, 2018. 2 See id. His

time for filing a motion for extension of time to perfect his appeal expired August

17, 2018. See Tex. R. App. P. 26.3. Barahona filed his notice of appeal on August

20, 2018, three days after the period in which he could have sought an extension for

filing his notice. If an appeal is not timely perfected, we may only dismiss the appeal.

See Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996). Accordingly, we

grant the State’s motion, and we dismiss the appeal.

APPEAL DISMISSED.

1 The notice of appeal is due ninety days after the day sentence is imposed in open court if the defendant timely files a motion for new trial. See Tex. R. App. P. 26.2(a)(2). This provision does not apply to Barahona’s case because his sentence was not imposed during the proceeding on his application seeking a writ of habeas corpus. See Rodarte v. State, 860 S.W.2d 108, 109 (Tex. Crim. App. 1993). 2 We dismiss the appeal because the only order that Barahona challenged in his appeal was signed more than thirty days before he filed his notice of appeal. See Tex. R. App. P. 26.2(a)(1). We expressly decline to consider whether the trial court ruled on the merits of the habeas application in its July 2018 order. See Ex parte Hargett, 819 S.W.2d 866, 868 (Tex. Crim. App. 1991) (an order denying a habeas application on its merits is appealable). 2 ________________________________ HOLLIS HORTON Justice

Submitted on October 30, 2018 Opinion Delivered October 31, 2018 Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.