Ruby Firo v. State

• Court: Court of Appeals of Texas
• Decided: January 10, 2013
• Docket: 13-12-00632-CR
• Status: Published

Opinion

NUMBER 13-12-00632-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

RUBY FIRO, Appellant,

v.

THE STATE OF TEXAS, Appellee. ____________________________________________________________

On appeal from the 105th District Court of Nueces County, Texas. ____________________________________________________________

MEMORANDUM OPINION Before Justices Garza, Benavides, and Perkes Memorandum Opinion Per Curiam

Appellant, Ruby Firo, attempted to perfect an appeal from a conviction for

aggravated assault. We dismiss the appeal for want of jurisdiction.

The trial court imposed sentence in this matter on August 17, 2012. Appellant

filed a notice of appeal and a motion for new trial on September 18, 2012. On October

19, 2012, the Clerk of this Court notified appellant that it appeared that the appeal was not timely perfected and 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.1 Appellant has not filed a

response to the Court’s notice.

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.

According to Texas Rule of Appellate Procedure 21.4, appellant had thirty days

after the day sentence was imposed to file his motion for new trial. TEX. R. APP. P. 21.4.

Because the thirtieth day fell on a Sunday, appellant had until the following Monday,

September 17, 2012 to file a motion for new trial. See TEX. R. APP. P. 4.1. The motion

for new trial was untimely because it was filed on September 18, 2012. Therefore, his

notice of appeal was due to have been filed within thirty days after the day sentence was

imposed or suspended in open court. See TEX. R. APP. P. 26.2(a)(2). Although the

notice of appeal herein was filed within the fifteen day time period, no such motion for

extension of time was filed within the fifteen day time period. See id.

1 The trial court’s certification of the defendant’s right to appeal shows that the defendant has waived his right to appeal. See TEX. R. APP. P. 25.2(a)(2). On October 19, 2012, this Court notified appellant’s counsel of the trial court’s certification and ordered counsel to: (1) review the record; (2) determine whether appellant has a right to appeal; and (3) forward to this Court, by letter, counsel’s findings as to whether appellant has a right to appeal, or, alternatively, advise this Court as to the existence of any amended certification. 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. 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).

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 appeal is DISMISSED FOR WANT OF JURISDICTION.

PER CURIAM

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

Delivered and filed the 10th day of January, 2013.