Mario Samuel Martinez v. State

• Court: Court of Appeals of Texas
• Decided: July 26, 2018
• Docket: 13-18-00331-CR
• Status: Published

Opinion

NUMBER 13-18-00331-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

MARIO SAMUEL MARTINEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee. ____________________________________________________________

On appeal from the 105th District Court of Kleberg County, Texas. ____________________________________________________________

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

Appellant, Mario Samuel Martinez, 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 May 18, 2018. No motion for new trial

was filed. Appellant filed a pro se notice of appeal by facsimile on June 21, 2018. On

June 25, 2018, 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. In response, appellant has filed a copy of the notice of appeal with the

certificate of service date of June 7, 2018 circled and a copy of the docket sheet which

contains a June 26, 2018 entry which includes “[a]ppeal filed; Court gives [defendant]

time to hire attorney.”

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). 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. 26.3. Although the notice

of appeal herein was filed within the 15-day time period for filing a motion for extension

of time to file notice of appeal, no such motion for extension of time was filed within the

15-day time period. See id.

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

2 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) (West, Westlaw through 2017 1st C.S.); see also Ex parte

Garcia, 988 S.W.2d 240 (Tex. Crim. App. 1999).

The appeal is DISMISSED FOR WANT OF JURISDICTION.

NORA L. LONGORIA Justice

Do not publish.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

Delivered and filed the 26th day of July, 2018.