Harold Corbitt v. State

• Court: Court of Appeals of Texas
• Decided: August 13, 2009
• Docket: 13-09-00332-CR
• Status: Published

Opinion

NUMBER 13-09-00332-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ______________________________________________________________

HAROLD CORBITT, Appellant,

v.

THE STATE OF TEXAS, Appellee. _____________________________________________________________

On appeal from the 214th District Court of Nueces County, Texas. ______________________________________________________________

MEMORANDUM OPINION Before Justices Rodriguez, Garza, and Vela Memorandum Opinion Per Curiam

Appellant, Harold Corbitt, attempted to perfect an appeal from a conviction for

continual sexual abuse. We dismiss the appeal for want of jurisdiction.

Sentence in this matter was imposed on February 4, 2009. No motion for new trial

was filed. Notice of appeal was filed on May 18, 2009. On June 16, 2009, 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 this 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). 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.

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). 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’s notice of appeal, filed more than 100 days after sentence was imposed,

was untimely, and accordingly, we lack jurisdiction over the appeal. See Slaton, 981

S.W.2d at 210. 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 .

2 CODE CRIM . PROC . ANN . art. 11.07, § 3(a) (Vernon 2005); 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).

Memorandum Opinion delivered and filed this the 13th day of August, 2009.