Rogelio Benavidez v. State

• Court: Court of Appeals of Texas
• Decided: March 29, 2018
• Docket: 13-18-00150-CR
• Status: Published

Opinion

NUMBER 13-18-00150-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

ROGELIO BENAVIDEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee. ____________________________________________________________

On appeal from the 404th District Court of Cameron County, Texas. ____________________________________________________________

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Benavides and Longoria Memorandum Opinion by Justice Nora Longoria

Appellant, Rogelio Benavides, attempted to perfect an appeal from a conviction for

indecency with a child. We dismiss the appeal for want of jurisdiction.

Sentence in this matter was imposed on January 22, 2018. No motion for new

trial was filed. On March 16, 2018, appellant filed a notice of appeal and a motion for

extension of time to file notice of appeal. On March 19, 2018, the Clerk of this Court notified appellant that it appeared that the appeal was not timely perfected. 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 responded to

this Court’s notice.

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). 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 was due to have been filed on or before February 21,

2018. See TEX. R. APP. P. 26.2(a)(2). Appellant’s notice of appeal and motion for

extension of time to file notice of appeal were filed on March 16, 2018, outside the fifteen-

day time period.

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). When a

notice of appeal is filed within the fifteen-day period but no timely motion for extension of

time is filed, the appellate court lacks jurisdiction. See Olivo, 918 S.W.2d at 522.

Absent a timely filed notice of appeal, a court of appeals does not obtain jurisdiction to

address the 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).

2 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) (West, Westlaw through 2017 R.S.); see also Ex parte

Garcia, 988 S.W.2d 240 (Tex. Crim. App. 1999).

Appellant’s motion for extension of time to file notice of appeal is DENIED and the

appeal is DISMISSED FOR WANT OF JURISDICTION.

NORA L. LONGORIA Justice

Do not publish.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

Delivered and filed the 29th day of March, 2018.