Marcus DeLeon v. State

• Court: Court of Appeals of Texas
• Decided: April 19, 2018
• Docket: 13-18-00087-CR
• Status: Published

Opinion

NUMBER 13-18-00087-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

MARCUS DELEON, Appellant,

v.

THE STATE OF TEXAS, Appellee. ____________________________________________________________

On appeal from the 156th District Court of Live Oak County, Texas. ____________________________________________________________

MEMORANDUM OPINION Before Justices Rodriguez, Contreras, and Hinojosa Memorandum Opinion by Justice Hinojosa

Appellant Marcus DeLeon, proceeding pro se, attempted to perfect an appeal from

two orders rendered on October 6, 2017 which denied (1) appellant’s “Special Plea of

Jeopardy” on grounds that the trial court lacked jurisdiction, and (2) appellant’s motion for

the appointment of counsel. Appellant did not file his notice of appeal, which stated that

he was seeking an “out of time appeal,” until February 9, 2018. On February 14, 2018, this Court notified appellant that it appeared that there was no appealable order, 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. In response, appellant argues that the orders

subject to review are appealable and offers explanations for the late filing of his notice of

appeal.

An appellate court has the obligation to determine its own jurisdiction. See

Ramirez v. State, 89 S.W.3d 222, 225 (Tex. App.—Corpus Christi 2002, no pet.);

Yarbrough v. State, 57 S.W.3d 611, 615 (Tex. App.—Texarkana 2001, pet. ref'd); see

also Laureles v. State, No. 13-13-00535-CR, 2014 WL 1669102, at *1 (Tex. App.—

Corpus Christi Apr. 24, 2014, no pet.) (mem. op., not designated for publication). A

defendant's notice of appeal must be filed within thirty days after the trial court enters an

appealable order. See TEX. R. APP. P. 26.2(a)(1). A notice of appeal which complies

with the requirements of Rule 26 is essential to vest the court of appeals with jurisdiction.

Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998). If an appeal is not timely

perfected, a court of appeals does not obtain jurisdiction to address the merits of the

appeal. Id. Under such circumstances it can take no action other than to dismiss the

appeal. Id.

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, 343 S.W.2d 446, 447 (Tex. Crim. App. 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

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

The Court, having examined and fully considered the notice of appeal and the

briefing filed by appellant, is of the opinion that there is not an appealable order and this

Court lacks jurisdiction over the matters herein. Our review of the documents before the

Court does not reveal any appealable orders entered by the trial court within thirty days

before the filing of appellant's notice of appeal. Accordingly, this appeal is DISMISSED

for lack of jurisdiction. Pending motions, if any, are likewise DISMISSED. 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 2017 1st C.S.); Ater v. Eighth Ct. of Appeals, 802 S.W.2d

241, 243 (Tex. Crim. App. 1991) (orig. proceeding).

LETICIA HINOJOSA Justice

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

Delivered and filed the 19th day of April, 2018.