Gabriel Aguilar v. Jesus Humberto Hernandez

Opinion

NUMBERS 13-11-00096-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

GEORGE CANO, Appellant,

v.

THE STATE OF TEXAS, Appellee. ____________________________________________________________

On appeal from the 105th District Court of Nueces County, Texas. ____________________________________________________________

MEMORANDUM OPINION Before Justices Benavides, Vela, and Perkes Memorandum Opinion Per Curiam

Appellant, George Cano, pro se, attempted to perfect an appeal from a conviction

for the second degree felony offense of burglary of a building in trial court cause number

91-CR-299-D. We dismiss the appeal for want of jurisdiction.

The judgment in this cause was entered in 1991. Appellant filed a pro se notice of

appeal on February 22, 2011. That same day, 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. Appellant has not responded to the Court’s directive.

This Court's appellate jurisdiction in a criminal case is invoked by a timely filed

notice of appeal. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Texas

Rule of Appellate Procedure 26.2 provides that an appeal is perfected when notice of

appeal is filed within thirty days after the day sentence is imposed or suspended in open

court unless a motion for new trial is timely filed. TEX. R. APP. P. 26.2(a)(1). 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. Absent a timely filed

notice of appeal, a court of appeals does not obtain jurisdiction to address the merits of

the appeal in a criminal case and can take no action other than to dismiss the appeal for

want of jurisdiction. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998).

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) (West Supp. 2010); see also Ex parte Garcia, 988 S.W.2d

240 (Tex. Crim. App. 1999); Ater v. Eighth Court of Appeals, 802 S.W.2d 241 (Tex. Crim.

App. 1991).

2 This appeal is DISMISSED FOR WANT OF JURISDICTION.

PER CURIAM

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the 28th day of July, 2011.