Michael Dante Garrett v. State

Opinion

DISMISS; and Opinion Filed August 16, 2019.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00949-CR

MICHAEL DANTE GARRETT, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 292nd Judicial District Court Dallas County, Texas Trial Court Cause No. F92-39878-WV

MEMORANDUM OPINION Before Justices Schenck, Osborne, and Reichek Opinion by Justice Osborne Michael Dante Garrett appeals his conviction for aggravated robbery with a deadly

weapon. After finding appellant guilty, the jury assessed punishment at 99 years in prison and a

$10,000 fine. On February 26, 2019 appellant filed a “Notice of Out of Time Appeal for Illegal

Sentence” that was forwarded to and filed in this Court on August 12, 2019.

The appropriate vehicle for seeking an out-of-time appeal is by writ of habeas corpus from

the Texas Court of Criminal Appeals filed under article 11.07 of the code of criminal procedure.

See TEX. CODE CRIM. PROC. ANN. art. 11.07; see Ater v. Eighth Court of Appeals, 802 S.W.2d 241

(Tex. Crim. App. 1991) (explaining that writ of habeas corpus pursuant to article 11.07 of the

Texas Code of Criminal Procedure governs out-of-time appeals from felony convictions). This

Court has no jurisdiction to grant out-of-time appeals. To the extent we were to construe his motion as a notice of appeal, we note that a timely

filed notice of appeal is required to invoke this Court’s jurisdiction. Castillo v. State, 369 S.W.3d

196, 198 (Tex. Crim. App. 2012). In the absence of a timely filed notice of appeal, we have no

option other than to dismiss the appeal. Id. A defendant perfects an appeal by filing with the trial

court clerk, within thirty days after the date sentence was imposed, or within ninety days after

sentencing if the defendant timely filed a motion for new trial, a written notice of appeal showing

his desire to appeal. See TEX. R. APP. P. 25.2(b), (c), 26.2(a).

Appellant was convicted on July 20, 1994; absent a timely filed motion for new trial, his

notice of appeal was due no later than August 19, 1994. However, this document was filed with

the district clerk on February 26, 2019, depriving us of jurisdiction.

Because we lack jurisdiction, we dismiss this appeal.

/Leslie Osborne/ LESLIE OSBORNE JUSTICE

Do Not Publish TEX. R. APP. P. 47.2(b)

190949F.U05

–2– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

MICHAEL DANTE GARRETT, Appellant On Appeal from the 292nd Judicial District Court, Dallas County, Texas No. 05-19-00949-CR V. Trial Court Cause No. F92-39878-WV. Opinion delivered by Justice Osborne, THE STATE OF TEXAS, Appellee Justices Schenck and Reichek participating.

Based on the Court’s opinion of this date, we DISMISS this appeal for want of jurisdiction.

Judgment entered this 16th day of August, 2019.

–3–