John Medellin v. State

• Court: Court of Appeals of Texas
• Decided: August 31, 2009
• Docket: 13-09-00240-CR
• Status: Published

Opinion

NUMBER 13-09-00240-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ______________________________________________________________

JOHN MEDELLIN, Appellant,

v.

THE STATE OF TEXAS, Appellee. _____________________________________________________________

On appeal from the 319th District Court of Nueces County, Texas. ______________________________________________________________

MEMORANDUM OPINION

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

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

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

Sentence in this matter was imposed on April 8, 2009. No motion for new trial was

filed. Notice of appeal was filed on July 21, 2009. On July 31, 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. On August 12, 2009, appellant filed with

this Court a motion for leave to file extension of time to file 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 TEX . R. APP. P. 26.3.

Appellant’s notice of appeal was due to have been filed on or before May 18, 2009.

Appellant did not file a notice of appeal or motion for extension of time to file his notice of

appeal as permitted by Texas Rule of Appellate Procedure 26.3 within the 15-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). 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 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). Memorandum Opinion delivered and filed this the 31st day of August, 2009.