Ex Parte Kevin James Kelch

• Court: Court of Appeals of Texas
• Decided: July 12, 2012
• Docket: 10-12-00196-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-12-00196-CR

EX PARTE KEVIN JAMES KELCH

From the 249th District Court Johnson County, Texas Trial Court No. F33975-C

MEMORANDUM OPINION

A judgment was rendered against James Kevin Kelch on March 12, 2012. Kelch’s

notice of appeal was filed on June 4, 2012. The notice of appeal is untimely. See TEX. R.

APP. P. 26.2(a). Therefore, this proceeding is dismissed for want of jurisdiction.

On June 13, 2012 we sent a notice to Kelch questioning our jurisdiction. On the

same date, apparently realizing his notice of appeal was untimely, Kelch filed an

unopposed motion to file an out of time appeal. This Court has no jurisdiction over an

appeal where the notice of appeal is untimely. Olivo v. State, 918 S.W.2d 519, 522 (Tex.

Crim. App. 1996). If an appeal is not timely perfected, a court of appeals does not

obtain jurisdiction to address the merits of the appeal and can take no action other than

to dismiss the appeal. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998). Such relief, if any, in this situation may be available pursuant to a writ of habeas corpus filed

with the district court. See TEX. CODE CRIM. PROC. ANN. art. 11.05 (West 2005); TEX.

CONST. art. V, § 8; Rodriguez v. Court of Appeals, Eighth Supreme Judicial Dist., 769 S.W.2d

554, 557-59 (Tex. Crim. App. 1989); Parr v. State, 206 S.W.3d 143, 145 (Tex. App.—Waco

2006, no pet.). Because we dismiss this proceeding for want of jurisdiction, Kelch’s

unopposed motion to file an out of time appeal is dismissed as moot.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Appeal dismissed Motion dismissed as moot Opinion delivered and filed July 12, 2012 Do not publish [CR25]

Ex parte Kelch Page 2