James Owen Schultz v. State

Opinion

NUMBER 13-09-00615-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ______________________________________________________________

JAMES OWEN SCHULTZ, Appellant,

v.

THE STATE OF TEXAS, Appellee. _____________________________________________________________

On Appeal from the County Court at Law No. 1 of Cameron County, Texas. ______________________________________________________________

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Benavides Memorandum Opinion Per Curiam

Appellant, James Owen Schultz, attempted to perfect an appeal from a conviction

for assault. We dismiss the appeal for want of jurisdiction.

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 have jurisdiction to address the

merits of the appeal 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).

The trial court imposed sentence in this matter on July 8, 2009. No motion for new

trial was filed. Appellant filed his notice of appeal on October 8, 2009. On November 6,

2009, the Clerk of this Court notified appellant that it appeared that the appeal was not

timely perfected and 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 filed a

response to the Court’s directive.

Unless a motion for new trial has been timely filed, a notice of appeal must be filed

within thirty days after the day sentence is imposed or suspended in open court, or after

the day the trial court enters an appealable order. TEX . R. APP. P. 26.2(a)(1). Where a

timely motion for new trial has been filed, the notice of appeal must be filed within ninety

days after the day sentence is imposed or suspended in open court. See id. 26.2(a)(2).

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.

Appellant’s notice of appeal, filed more than ninety 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. See TEX . R. APP. P. 47.2(b).

Delivered and filed the 25th day of February, 2010.