Peter Curry v. State

• Court: Court of Appeals of Texas
• Decided: December 21, 2010
• Docket: 13-09-00517-CR
• Status: Published

Opinion

                  NUMBERS 13-09-00517-CR AND 13-09-00518-CR

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

____________________________________________________________

PETER CURRY,                                                                              Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                  Appellee.

                             On Appeal from the 214th District Court

                                        of Nueces County, Texas.

                               MEMORANDUM OPINION

         Before Chief Justice Valdez and Justices Rodriguez and Benavides

Memorandum Opinion Per Curiam

Appellant, Peter Curry, attempted to perfect an appeal from a conviction for aggravated sexual assault of a child and a conviction of burglary of a habitation.  We dismiss the appeals 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 imposed sentence in these matters on March 14, 2008, and the judgment was corrected by a nunc pro tunc order signed April 9, 2008.  Appellant filed his notice of appeal on April 7, 2009.  On December 22, 2009, the Clerk of this Court notified appellant that it appeared that the appeals were not timely perfected and that the appeals 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 directive. 

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 twelve months after sentence was imposed, was untimely, and accordingly, we lack jurisdiction over the appeals.  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 appeals are DISMISSED FOR WANT OF JURISDICTION.                                           

                                                                        PER CURIAM

Do not publish.

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

Delivered and filed the

21st day of December, 2010.