Ruben Cantu, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: July 17, 2017
• Docket: 07-17-00210-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-17-00210-CR

RUBEN CANTU, JR., APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 140th District Court Lubbock County, Texas Trial Court No. 2009-422,143; Honorable Jim Bob Darnell, Presiding

July 17, 2017

MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Appellant Ruben Cantu, Jr., appearing pro se, attempts to appeal his two

convictions for indecency with a child1 and consecutive sentences of forty years

imprisonment. We previously affirmed his convictions in Cantu v. State, 366 S.W.3d

771 (Tex. App.—Amarillo 2012, no pet.). We now dismiss his attempted appeal for

want of jurisdiction.

1 TEX. PENAL CODE ANN. § 21.11 (West 2011). Appellant was sentenced on April 1, 2010. On June 19, 2017, appellant filed

“Cantu’s Notice of Appeal,” “Cantu’s Memorandum of Law,” and an application for writ

of habeas corpus in the trial court. Both the notice of appeal and the application for writ

of habeas corpus reference “Cantu’s Memorandum of Law,” wherein appellant argues

he received illegal sentences. The district clerk has informed this Court that the

application for writ of habeas corpus and memorandum of law were forwarded to the

Court of Criminal Appeals. See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 3 (West

2015). By letter on June 23, 2017, we notified appellant that his notice of appeal was

untimely and directed him to file a response showing grounds for continuing the appeal

by July 10. Appellant filed a response asking this Court to vacate the judgments and

remand the case for re-sentencing.

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). A timely notice of appeal is required to

invoke our appellate jurisdiction. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App.

1996). If the notice is untimely, we can take no action other than to dismiss for lack of

jurisdiction. Id. at 523.

As appellant’s notice of appeal is untimely, we have no jurisdiction over the

matter and may take no action other than to dismiss the appeal. See Olivo, 918 S.W.2d

at 523. Further, to the extent that appellant’s filings could be construed as an

application for writ of habeas corpus filed in this Court, we have no original habeas

corpus jurisdiction in criminal matters. See TEX. GOV’T CODE ANN. § 22.221(d) (West

2004) (original habeas corpus jurisdiction of intermediate courts of appeals limited to

2 civil matters); Ex parte Castillo, No. 07-11-00096-CV, 2011 Tex. App. LEXIS 2188, at *2

(Tex. App.—Amarillo Mar. 25, 2011, orig. proceeding) (mem. op.). Rather, habeas

corpus jurisdiction in criminal proceedings rests with the Court of Criminal Appeals, the

district courts, and the county courts. See TEX. CODE CRIM. PROC. ANN. art. 11.05, 11.07

(West 2015); Padieu v. Court of Appeals of Tex., Fifth Dist., 392 S.W.3d 115, 117 (Tex.

Crim. App. 2013) (orig. proceeding) (per curiam).

Accordingly, we dismiss the appeal for want of jurisdiction.

James T. Campbell Justice

Do not publish.