Marcus Pena v. State

• Court: Court of Appeals of Texas
• Decided: February 24, 2011
• Docket: 13-11-00054-CR
• Status: Published

Opinion

                                       NUMBER 13-11-00054-CR

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

____________________________________________________________

MARCUS PENA,                                                                      APPELLANT,

                                                             v.

THE STATE OF TEXAS,                                                            APPELLEE.

                          On Appeal from the 377th District Court

                                       of Victoria County, Texas.

                               MEMORANDUM OPINION

                            Before Justices Garza, Benavides, and Vela

Memorandum Opinion Per Curiam

Appellant, Marcus Pena, attempted to perfect an appeal from a conviction for aggravated robbery.  We dismiss the appeal for want of jurisdiction.

Sentence in this matter was imposed on September 23, 2010, counsel filed a motion for new trial on October 7, 2010, and notice of appeal was filed on January 24, 2011.  On January 24, 2011, the Clerk of this Court notified appellant that it appeared that the appeal was not timely perfected 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.  On that same day, January 24, 2011, appellant filed a motion for leave to file notice of appeal.

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).  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 Tex. R. App. P. 26.3.

Appellant timely filed a motion for new trial.  Therefore, his notice of appeal was due to have been filed on or before December 22, 2010.  See Tex. R. App. P. 26.2(a)(2).  Within the fifteen day time period, appellant did not file a motion for extension of time to file his notice of appeal and did not file his notice of appeal.  

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).  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).

Appellant’s motion for leave to file to file notice of appeal is DENIED.  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

24th day of February, 2011.