Richard Livesay v. State

• Court: Court of Appeals of Texas
• Decided: January 6, 2014
• Docket: 07-13-00416-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-13-00416-CR

RICHARD W. LIVESAY, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 137th District Court Lubbock County, Texas Trial Court No. 2002-439,778, Honorable Jim B. Darnell, Presiding

January 6, 2014

MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.

Appellant, Richard W. Livesay, pled guilty to and was convicted of the offense of

aggravated assault with a deadly weapon. On April 4, 2003, appellant was sentenced

to incarceration in the Texas Department of Criminal Justice, Institutional Division, for a

period of thirty years. On November 26, 2013, appellant filed his notice of appeal. We

dismiss for want of jurisdiction. To be timely, a notice of appeal must be filed within thirty days after sentence is

imposed or suspended in open court or within ninety days after that date if a motion for

new trial is timely filed. TEX. R. APP. P. 26.2(a). Appellant did not file a motion for new

trial. Therefore, appellant’s notice of appeal was due on May 5, 2003.1 Because

appellant’s notice of appeal was filed ten and a half years after the deadline, this Court

is without jurisdiction over this appeal. See Olivo v. State, 918 S.W.2d 519, 522 (Tex.

Crim. App. 1996). Because this Court is without jurisdiction to address the merits of this

appeal, we have no authority to take any action other than to dismiss the appeal. See

Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998); Olivo, 918 S.W.2d at 523.

By letter dated December 5, 2013, this Court notified appellant that it appeared

that his notice of appeal was untimely filed and failed to invoke this Court’s jurisdiction,

and directed him to file a response with the Court by January 6, 2014, explaining how

this Court has jurisdiction over the appeal. On December 20, 2013, this Court received

appellant’s response. In it, appellant contends that he has a statutory right to appeal

that cannot be abridged by rule, especially as to his contention that his plea was

involuntarily given. However, the Court of Criminal Appeals has recently reiterated that

the timely filing of a written notice of appeal is a jurisdictional prerequisite to appeal.

Castillo v. State, 369 S.W.3d 196, 198 (Tex. Crim. App. 2012).

1 Thirty days from the date sentence was imposed would be May 4, 2003. However, because May 4, 2003, was a Sunday, appellant’s notice of appeal was due on May 5, 2003. See TEX. R. APP. P. 4.1(a).

2 As such, we now dismiss the purported appeal for want of jurisdiction.2

Mackey K. Hancock Justice

Do not publish.

2 Appellant may have recourse by filing a post-conviction writ of habeas corpus returnable to the Texas Court of Criminal Appeals for consideration of an out-of-time appeal. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (Vernon Supp. 2007); Olivo, 918 S.W.2d at 525 n.8 (“the exclusive post-conviction remedy in final felony convictions in Texas courts is through a writ of habeas corpus pursuant to TEX. CODE CRIM. PROC. [ANN.] art. 11.07”); Parr v. State, 206 S.W.3d 143, 145 (Tex. App—Waco 2006, no pet.).