Juan Jose Garcia v. State

• Court: Court of Appeals of Texas
• Decided: August 31, 2018
• Docket: 01-18-00381-CR
• Status: Published

Opinion

Opinion issued August 31, 2018

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-18-00381-CR ——————————— JUAN JOSE GARCIA, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 149th District Court Brazoria County, Texas Trial Court Case No. 50712

MEMORANDUM OPINION After appellant, Juan Jose Garcia, pleaded guilty to the second-degree felony

offense of aggravated assault—deadly weapon, with an agreed punishment

recommendation of ten years’ confinement, the trial court assessed his punishment at ten years’ confinement on March 17, 2011.1 The trial court later granted

appellant’s request for shock probation, suspended his prison sentence, and placed

him on community supervision for a period of ten years on August 10, 2011. After

a hearing on the State’s motion to revoke appellant’s probated sentence, the trial

court revoked appellant’s community supervision, adjudicated his guilt, and

assessed his punishment at ten years’ confinement on January 22, 2018.2 The trial

court certified appellant’s right of appeal. See TEX. R. APP. P. 25.2(a)(2). Appellant

requested and was appointed counsel on March 20, 2018. However, appellant did

not file his pro se notice of appeal until May 7, 2018.3 We dismiss this appeal for

want of jurisdiction and dismiss the motion to withdraw as moot.

A criminal defendant’s notice of appeal must be filed within thirty days after

the sentence is imposed, or within ninety days after the sentence is imposed if the

defendant has timely filed a motion for new trial. See TEX. R. APP. P. 26.2(a). The

time for filing a notice of appeal may be extended if, within fifteen days of the

deadline for filing the notice of appeal, an appellant files both a notice of appeal and

a motion for an extension of time to file the notice of appeal. See TEX. R. APP. P.

1 See TEX. PENAL CODE ANN. § 22.02(a)(2), (b) (West 2011). 2 See TEX. PENAL CODE ANN. § 12.33(a) (West 2011). 3 Appellant’s appointed counsel filed a motion to withdraw with an Anders brief and contended that this Court was without jurisdiction because the notice of appeal was untimely filed. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). 2 26.3; Douglas v. State, 987 S.W.2d 605, 606 (Tex. App.—Houston [1st Dist.] 1999,

no pet.) (“The limited, 15-day extended time period applies to both the notice and

the motion for extension; both must be filed within the 15-day time period.”). A

notice of appeal that complies with the requirements of Rule 26 is essential to vest

the court of appeals with jurisdiction. See Slaton v. State, 981 S.W.2d 208, 210 (Tex.

Crim. App. 1998); Olivo v. State, 918 S.W.2d 519, 522–23 (Tex. Crim. App. 1996).

If an appeal is not timely perfected, a court of appeals does not obtain jurisdiction to

address the merits of the appeal. See Slaton, 981 S.W.2d at 210.

Here, the trial court signed appellant’s judgment revoking community

supervision on January 22, 2018, and imposed the sentence that day. Appellant did

not timely file a motion for new trial, making his notice of appeal due by February

21, 2018. See TEX. R. APP. P. 26.2(a)(1). Appellant’s notice of appeal was not filed

until May 7, 2018, more than thirty days after his sentence was imposed and, thus,

was filed untimely. See TEX. R. APP. P. 26.3; Douglas, 987 S.W.2d at 606. Thus,

under these circumstances, we can take no action other than to dismiss this appeal

for want of jurisdiction.4 See Slaton, 981 S.W.2d at 210; Olivo, 918 S.W.2d at 526.

4 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, but that remedy is beyond the jurisdiction of this Court. See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 3(a) (West 2015); see also Ex parte Garcia, 988 S.W.2d 240, 241 (Tex. Crim. App. 1999) (per curiam).

3 Accordingly, we dismiss this appeal for want of jurisdiction. See TEX. R. APP.

P. 43.2(f). We dismiss all pending motions as moot.

PER CURIAM Panel consists of Justices Jennings, Higley, and Massengale.

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