Jermaine D. Middleton v. State

Opinion

NUMBER 13-10-00632-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

JERMAINE D. MIDDLETON, Appellant,

v.

THE STATE OF TEXAS, Appellee. ____________________________________________________________

On appeal from the 329th District Court of Wharton County, Texas. ____________________________________________________________

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

Appellant, Jermaine D. Middleton, attempted to perfect an appeal from a

conviction for possession of a firearm by a felon. We dismiss the appeal for want of

jurisdiction.

Sentence in this matter was imposed on September 30, 2010. No motion for new

trial was filed. Notice of appeal was filed on November 15, 2010. On November 18, 2010, 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. On

December 2, 2010, the Court received a motion for leave to file notice of appeal.

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. Although the notice of

appeal herein was filed within the fifteen day time period, no such motion for extension of

time was filed within the fifteen day time period. See id.

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). AWhen a

notice of appeal is filed within the fifteen-day period but no timely motion for extension of

time is filed, the appellate court lacks jurisdiction.@ Olivo, 918 S.W.2d at 522. 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). Accordingly, appellant’s motion for leave to file notice of appeal is DENIED.

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.

2 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).

Delivered and filed the 13th day of January, 2011.