Luzalbert Hernandez v. the State of Texas

Opinion

NUMBER 13-24-00355-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

LUZALBERT HERNANDEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

ON APPEAL FROM THE 377TH DISTRICT COURT OF VICTORIA COUNTY, TEXAS

MEMORANDUM OPINION Before Chief Justice Contreras and Justices Tijerina and Peña Memorandum Opinion by Justice Tijerina

This cause is before the Court on appellant’s motion for extension of time to file

notice of appeal. On March 14, 2024, the trial court issued an order denying a motion for

forensic testing. On July 17, 2024, pro se appellant filed a notice of appeal attempting to

appeal the order. On July 17, 2024, the Clerk of this Court notified appellant that it

appeared the appeal was not timely perfected in this matter. In response, appellant filed the motion now before the Court which asks the Court to extend the appellate timeline

and to assert jurisdiction over the matter.

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). Appellant’s

notice of appeal is untimely. Accordingly, we lack jurisdiction over the appeal. See Slaton,

981 S.W.2d at 210.

The Court, having examined and fully considered the documents on file

and appellant’s failure to timely perfect this appeal, is of the opinion that the appeal should

be dismissed for want of jurisdiction. 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); see also Ex parte Garcia, 988 S.W.2d

240 (Tex. Crim. App. 1999). Accordingly, appellant’s motion for extension of time to file

notice of appeal is hereby denied, and the appeal is dismissed for want of jurisdiction.

JAIME TIJERINA Justice

Do not publish.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

Delivered and filed on the 1st day of August, 2024.