Marcos Antonio Hernandez-Prado v. State

• Court: Court of Appeals of Texas
• Decided: March 31, 2011
• Docket: 13-10-00513-CR
• Status: Published

Opinion

NUMBER 13-10-00513-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

MARCOS ANTONIO HERNANDEZ-PRADO, APPELLANT,

v.

THE STATE OF TEXAS, APPELLEE. ____________________________________________________________

On Appeal from the 197th District Court of Cameron County, Texas. ____________________________________________________________

MEMORANDUM OPINION Before Justices Garza, Vela, and Perkes Memorandum Opinion Per Curiam

Appellant, Marcos Antonio Hernandez-Prado, attempted to perfect an appeal from

a conviction for aggravated assault. We dismiss the appeal for want of jurisdiction.

On April 30, 2001, appellant was placed on deferred adjudication supervision after

he pleaded guilty to aggravated assault. Thereafter, the State filed a motion to set aside

deferred adjudication alleging that appellant had violated conditions of supervision. Appellant entered a plea of guilty and a sentence of five years in the Texas Department of

Criminal Justice, institutional Division was imposed on April 9, 2003.

On August 16, 2010, appellant filed a pro se “Motion to Withdraw Coerced Guilty

Plea and Conviction Based on Newly Discovered Evidence Found on August 9, 2010.”

By this motion, the appellant sought to withdraw his guilty plea and expunge his record

based on newly discovered evidence that he had been confused with another individual

with the same nickname. The trial court denied the appellant’s motion on September 3,

2010.

On September 21, 2010, appellant filed a pro se notice of appeal stating that he

was appealing the order of September 3, 2010. On November 17, 2010, the Clerk of this

Court notified appellant that the order from which he was appealing was not a final,

appealable judgment. 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.

Appellant has not filed a response to the Court’s directive.

Generally, a state appellate court only has jurisdiction to consider an appeal by a

criminal defendant where there has been a final judgment of conviction. Workman v.

State, 170 Tex. Crim. 621, 343 S.W.2d 446, 447 (1961); McKown v. State, 915 S.W.2d

160, 161 (Tex. App.–Fort Worth 1996, no pet.). Exceptions to the general rule include:

(1) certain appeals while on deferred adjudication community supervision, Kirk v. State,

942 S.W.2d 624, 625 (Tex. Crim. App. 1997); (2) appeals from the denial of a motion to

reduce bond, TEX. R. APP. P. 31.1; McKown, 915 S.W.2d at 161; and (3) certain appeals

2 from the denial of habeas corpus relief, Wright v. State, 969 S.W.2d 588, 589 (Tex.

App.--Dallas 1998, no pet.); McKown, 915 S.W.2d at 161.

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).

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).

The order denying appellant’s motion to withdraw his guilty plea is not a final,

appealable judgment. Appellant’s notice of appeal, filed more than seven years 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).

3 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 31st day of March, 2011.