Gilbert Zepeda v. State

• Court: Court of Appeals of Texas
• Decided: May 19, 2016
• Docket: 13-16-00225-CR
• Status: Published

Opinion

NUMBER 13-16-00225-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

GILBERT ZEPEDA, Appellant,

v.

THE STATE OF TEXAS, Appellee. ____________________________________________________________

On appeal from the 28th District Court of Nueces County, Texas. ____________________________________________________________

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

Appellant, Gilbert Zepeda, attempted to perfect an appeal from a conviction for

assault—family violence—with a prior conviction. See TEX. PEN. CODE ANN. § 22.01

(West, Westlaw through 2015 R.S.). Sentence was imposed in this cause on October 8,

2015. Appellant did not file a motion for new trial and filed his notice of appeal in this Court, rather than the trial court, on April 20, 2016. See TEX. R. APP. P. 25.2(c). We

dismiss the appeal for want of jurisdiction.

On April 20, 2016, 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 did not correct the defect or file a response to this Court’s

notice.

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); see

Rodarte v. State, 860 S.W.2d 108, 109 (Tex. Crim. App.1993); Lair v. State, 321 S.W.3d

158, 159 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd). 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 TEX. R. APP. P. 26.3.

Appellant’s notice of appeal was due within thirty days after sentence was imposed

in open court; however, his notice of appeal was not filed until almost six months after

sentence was imposed. See id. R. 26.2(a). 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

2 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, Westlaw through 2015 R.S.); see also Ex parte Garcia, 988 S.W.2d 240 (Tex.

Crim. App. 1999).

The appeal is DISMISSED FOR WANT OF JURISDICTION.

PER CURIAM

Do not publish.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

Delivered and filed the 19th day of May, 2016.