Ex Parte Minh Duy Nguyen

• Court: Court of Appeals of Texas
• Decided: October 29, 2020
• Docket: 02-20-00134-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-20-00134-CR ___________________________

Ex parte Minh Duy Nguyen

On Appeal from the 158th District Court Denton County, Texas Trial Court No. F-2001-0558-B (WHC4)

Before Gabriel, Kerr, and Birdwell, JJ. Memorandum Opinion by Justice Gabriel MEMORANDUM OPINION

Appellant Minh Duy Nguyen attempts to appeal from the trial court’s order

denying his habeas-corpus application arising from a judgment of conviction ordering

community supervision. See Tex. Code Crim. Proc. Ann. art. 11.072, § 7. Because he

did not timely file his notice of appeal from the trial court’s order, we dismiss the

attempted appeal for want of jurisdiction. See Tex. R. App. P. 43.2(f).

On July 20, 2001, Nguyen pled guilty to the state-jail-felony offense of delivery

of a controlled substance, the trial court deferred adjudicating his guilt, and the trial

court placed him on community supervision for two years. On December 20, 2018,

Nguyen filed a habeas-corpus application and asserted that his trial counsel had

affirmatively misled him regarding the immigration consequences of his plea. Had he

been aware of those consequences, Nguyen contended he would have not pleaded

guilty. The trial court denied the application on March 4, 2019.

The next day, Nguyen filed a second application, raising the same issue.

Nguyen’s trial counsel filed an affidavit stating that although he could not recall the

exact words he used, he would have told Nguyen that, based on his guilty plea, he

would be considered guilty of an aggravated felony under immigration law, would be

unable to work legally in the United States, and would be deported. The trial court

found Nguyen’s trial counsel to be credible in its findings and conclusions and denied

Nguyen’s second application on August 4, 2020. In its order, the trial court also

granted Nguyen an out-of-time appeal “of this Court’s May 19, 2020 order to the

2 extent that order was denied.” Nguyen filed his notice of appeal on September 22,

2020.

Nguyen has the statutory right to appeal the trial court’s denial; however, the

notice of appeal must be filed within thirty days after the appealable order was entered

to invoke this court’s jurisdiction. See Tex. Code Crim. Proc. Ann. art. 11.072, § 8; Ex

parte Gutierrez, No. 03-17-00644-CR, 2017 WL 5247516, at *2 (Tex. App.—Austin

Nov. 7, 2017, no pet.) (mem. op., not designated for publication); Ex parte Delgado,

214 S.W.3d 56, 58 (Tex. App.—El Paso 2006, pet. ref’d) (mem. op.). Nguyen filed his

notice of appeal on September 22, 2020—forty-nine days after the trial court’s

August 4, 2020 order. Even if the trial court intended to grant Nguyen an out-of-time

appeal from the March 4, 2019 denial of Nguyen’s first application,1 the extension

placed him at the point when he could give notice of appeal. See Ex parte Salim,

595 S.W.3d 844, 854 (Tex. App.—Fort Worth 2020, no pet.) (mem. op.). In other

words, the grant was not of an unlimited duration but, rather, allowed Nguyen to

appeal as of the date of the extension order—August 4, 2020. Even with the trial

court’s grant of an out-of-time appeal, Nguyen failed to timely do so.

We notified Nguyen of this jurisdictional issue, but Nguyen has not responded

showing grounds to continue the appeal. See Tex. R. App. P. 44.3. Thus, we dismiss

his appeal for want of jurisdiction.

1 The trial court granted an out-of-time appeal from a May 19, 2020 denial; however, our review of the record shows that no order was entered on that date.

3 /s/ Lee Gabriel

Lee Gabriel Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: October 29, 2020