Joseph Chaffin v. State

Opinion

                                       NUMBER 13-10-00359-CR

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

____________________________________________________________

JOSEPH CHAFFIN,                                                                       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 Vela

Memorandum Opinion Per Curiam

Appellant, Joseph Chaffin, attempted to perfect an appeal from a conviction for aggravated 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 June 11, 2009.  Appellant filed his notice of appeal on July 6, 2010.  On September 30, 2010, 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’s counsel has filed a response to the Court=s directive indicating that without a timely written notice of appeal and motion for extension of time to file notice of appeal, the Court lacks jurisdiction. 

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 twelve months 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. 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

14th day of October, 2010.