Nativida Trejo Ovalle, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: April 10, 2008
• Docket: 13-07-00756-CR
• Status: Published

Opinion

NUMBER 13-07-00756-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

______________________________________________________________

NATIVIDAD TREJO OVALLE, JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

_____________________________________________________________

On appeal from the 275th District Court

of Hidalgo County, Texas.

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MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Benavides

Memorandum Opinion Per Curiam

Appellant, Natividad Trejo Ovalle, Jr., attempted to perfect an appeal from the revocation of his probation. We dismiss the appeal for want of jurisdiction.

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 have jurisdiction to address the merits of the appeal 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).

The trial court revoked probation on March 27, 2007. Appellant filed his notice of appeal on December 27, 2007. On January 14, 2008, 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. Appellant's response fails to address the timeliness of his notice of appeal.

Unless a motion for new trial has been timely filed, a notice of appeal must be filed within thirty days after the day sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order. Tex. R. App. P. 26.2(a)(1). Where a timely motion for new trial has been filed, the notice of appeal must be filed within ninety days after the day sentence is imposed or suspended in open court. See id. 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 id. 26.3.

Appellant's notice of appeal, filed nine months after entry of the order revoking probation, 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. PER CURIAM

Do not publish.

See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this the 10th day of April, 2008.