Pedro Agustin Ramirezfacio v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: January 20, 2023
• Docket: 05-23-00032-CR
• Status: Published

Opinion

DISMISS and Opinion Filed January 20, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00032-CR

PEDRO AGUSTIN RAMIREZFACIO, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 291st Judicial District Court Dallas County, Texas Trial Court Cause No. F19-76421-U

MEMORANDUM OPINION Before Justices Partida-Kipness, Nowell, and Kennedy Opinion by Justice Nowell Pedro Agustin Ramirezfacio appeals his conviction for aggravated sexual

assault of a child. The record demonstrates we lack jurisdiction over the appeal

because the notice of appeal was not timely filed. Accordingly, we dismiss the

appeal for want of jurisdiction.

A defendant perfects his appeal by timely filing a written notice of appeal with

the trial court clerk. See TEX. R. APP. P. 25.2(c). To be timely, the notice of appeal

must be filed 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. See TEX. R. APP. P. 26.2(a). The rules of appellate procedure allow the time to file a notice of

appeal to be extended if the party files, within fifteen days of the filing deadline, the

notice of appeal in the trial court and a motion to extend the time to file the notice

of appeal in the court of appeals. See TEX. R. APP. P. 10.5(b), 26.3. In the absence

of a timely perfected notice of appeal, the Court must dismiss the appeal for lack of

jurisdiction. Ex parte Castillo, 369 S.W.3d 196, 198 (Tex. Crim. App. 2012); Slaton

v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (per curiam).

Here, the trial court imposed sentence on July 21, 2021. Appellant timely

moved for a new trial on July 21, 2021, which extended the time for appellant to

perfect his appeal to October 19, 2021. TEX. R. APP. P. 26.2(a)(2). Any motion to

extend the time to file the notice of appeal would have been due on or before

November 3, 2021. See TEX. R. APP. P. 26.3. Appellant filed his notice of appeal

on either November 1, 2022, or December 14, 2022, depending on whether the

November 1, 2022 document is a notice of appeal. Thus, appellant’s notice of appeal

is not timely, and we lack jurisdiction over this appeal. Ex parte Castillo, 369

S.W.3d at 198.

Appellant requests an “out of time” appeal. Although we lack authority to

grant such a request, appellant may file an application for a writ of habeas corpus in

order to pursue an out-of-time appeal. See Ater v. Eighth Court of Appeals, 802

S.W.2d 241, 243 (Tex. Crim. App. 1991) (orig. proceeding).

–2– We dismiss this appeal for want of jurisdiction.

/Erin A. Nowell/ ERIN A. NOWELL JUSTICE Do Not Publish TEX. R. APP. P. 47.2(b) 230032F.U05

–3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

PEDRO AGUSTIN On Appeal from the 291st Judicial RAMIREZFACIO, Appellant District Court, Dallas County, Texas Trial Court Cause No. F19-76421-U. No. 05-23-00032-CR V. Opinion delivered by Justice Nowell. Justices Partida-Kipness and THE STATE OF TEXAS, Appellee Kennedy participating.

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

Judgment entered January 20, 2023

–4–