Kevin Davis v. State

• Court: Court of Appeals of Texas
• Decided: July 23, 2015
• Docket: 13-15-00266-CR
• Status: Published

Opinion

NUMBER 13-15-00266-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

KEVIN DAVIS, Appellant,

v.

THE STATE OF TEXAS, Appellee. ____________________________________________________________

On appeal from the 214th District Court of Nueces County, Texas. ____________________________________________________________

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Benavides and Perkes Memorandum Opinion Per Curiam

Appellant Kevin Davis attempted to perfect an appeal from a conviction for murder.

Judgment and sentence was imposed on October 8, 2014, and the notice of appeal was

filed on June 8, 2015. On June 15, 2015, 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. More than ten days have passed, and no response

has been received, although appellant has filed his docketing statement.

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. See id. R.

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. R. 26.3.

Appellant did not file a motion for new trial, and accordingly, his notice of appeal

was due to have been filed on or before November 7, 2014. See id. R. 26.2(a)(2).

Appellant’s notice of appeal was filed almost seven months after this deadline.

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). When a

notice of appeal is filed within the fifteen-day period but no timely motion for extension of

time is filed, the appellate court lacks jurisdiction. Olivo, 918 S.W.2d at 522. 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).

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) (West, Westlaw through Ch. 46 2015 R.S.); 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).

Delivered and filed the 23rd day of July, 2015.