Jose Saenz Cerda v. the State of Texas

Opinion

NUMBER 13-21-00146-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

____________________________________________________________

JOSE SAENZ CERDA, Appellant,

v.

THE STATE OF TEXAS, Appellee. ____________________________________________________________

On appeal from the 24th District Court of Calhoun County, Texas. ____________________________________________________________

MEMORANDUM OPINION

Before Justices Longoria, Hinojosa, and Tijerina Memorandum Opinion by Justice Longoria

This matter is before the Court on appellant’s motion for court-appointed counsel

and on the Court’s own motion. Appellant attempted to perfect an appeal from a conviction

for tampering with evidence, corpse. We dismiss the appeal for want of jurisdiction. Sentence in this matter was imposed on February 1, 2018. On May 11, 2021, a

notice of appeal was filed. On May 11, 2021, 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.

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).

Where a timely motion for new trial has been filed, notice of appeal shall be filed within

ninety days after the sentence is imposed or suspended in open court. TEX. R. APP. P.

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 TEX. R. APP.

P. 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 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); see also Ex parte Garcia, 988 S.W.2d 240 (Tex. Crim. App.

1999).

Accordingly, the appeal along with the motion for court-appointed appellate

counsel are each dismissed for want of jurisdiction.

NORA L. LONGORIA Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed on the 26th day of August, 2021.