John Costilla v. State

• Court: Court of Appeals of Texas
• Decided: May 19, 2016
• Docket: 13-16-00171-CR
• Status: Published

Opinion

NUMBER 13-16-00171-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

JOHN COSTILLA, Appellant,

v.

THE STATE OF TEXAS, Appellee. ____________________________________________________________

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

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Rodriguez and Garza Memorandum Opinion Per Curiam

Appellant, John Costilla, attempted to perfect an appeal from a conviction for

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

Sentence in this matter was imposed on September 17, 2015. No motion for new

trial was filed. Notice of appeal was filed on March 21, 2016. On April 1, 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 has not

responded to this notice.

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 six months after sentence was

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

Slaton, 981 S.W.2d at 210. Additionally, the trial court has certified that this “is a plea-

bargain case, and the defendant has NO right of appeal.” See TEX. R. APP. P. 25.2(a)(2).

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) (Vernon 2005); see also Ex parte Garcia, 988 S.W.2d 240

(Tex. Crim. App. 1999).

2 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.