Miguel Hinojosa v. State

• Court: Court of Appeals of Texas
• Decided: August 26, 2011
• Docket: 13-11-00386-CR
• Status: Published

Opinion

NUMBER 13-11-00386-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

MIGUEL HINOJOSA, APPELLANT,

v.

THE STATE OF TEXAS, APPELLEE. ____________________________________________________________

On appeal from the 357th District Court of Cameron County, Texas. ____________________________________________________________

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Rodriguez and Garza Memorandum Opinion Per Curiam

Appellant, Miguel Hinojosa, attempted to perfect an appeal from a conviction for

illegal investment/enhancement. We dismiss the appeal for want of jurisdiction.

Sentence in this matter was imposed on January 9, 1995. A motion for new trial

was filed on May 5, 2011, and was denied by the trial court on May 23, 2011. On June 3,

2011, appellant filed a notice of appeal from the denial of the motion for new trial. On July 20, 2010, the Clerk of this Court notified appellant that it did not appear that the order

from which the appeal is taken is an appealable order. 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 notice.

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

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

2 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=s notice of appeal, filed more than sixteen 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).

The appeal is DISMISSED FOR WANT OF JURISDICTION. Any pending

motions are dismissed as moot.

PER CURIAM

Do not publish.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

Delivered and filed the 26th day of August, 2011.