Scott William Hess v. State

• Court: Court of Appeals of Texas
• Decided: October 15, 2020
• Docket: 13-20-00224-CR
• Status: Published

Opinion

NUMBER 13-20-00224-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

SCOTT WILLIAM HESS, Appellant,

v.

THE STATE OF TEXAS, Appellee. ____________________________________________________________

On appeal from the 197th District Court of Cameron County, Texas. ____________________________________________________________

MEMORANDUM OPINION Before Justices Benavides, Hinojosa, and Tijerina Memorandum Opinion by Justice Benavides

Appellant, Scott William Hess, proceeding pro se, attempts to appeal a judgement

entered in trial court cause number 2012-DCR-1617-C in the 197th District Court of

Cameron County, Texas. We DISMISS this appeal for lack of jurisdiction.

On October 12, 2012, appellant was convicted of the felony offense of indecency

with a child. On April 20, 2020, appellant filed a notice of appeal. On May 6, 2020, 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. Appellant filed a response stating

he is just “don’t recall filing an appeal” and asserts a matter “kinda like a form of ‘habeas

corpus’”.

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).

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. R. 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. R. 26.3.

Appellant’s notice of appeal, filed more than seven years after sentence was

imposed, was untimely, and accordingly, we lack jurisdiction over the appeal. See

Slaton, 981 S.W.2d at 210. Moreover, jurisdiction to grant post-conviction habeas corpus

relief in felony cases rests exclusively with the Texas Court of Criminal Appeals. TEX.

CODE CRIM. PROC. ANN. art. 11.07, § 5 (Vernon Supp. 2011); Bd. of Pardons & Paroles 2 ex rel. Keene v. Court of Appeals for the Eighth Dist., 910 S.W.2d 481, 483 (Tex. Crim.

App. 1995); In re McAfee, 53 S.W .3d 715, 717–18 (Tex. App.—Houston [1st Dist.] 2001,

orig. proceeding).

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 2013 3d C.S.); see also Ex parte

Garcia, 988 S.W.2d 240, 241 (Tex. Crim. App. 1999) (per curiam). The appeal is

DISMISSED FOR LACK OF JURISDICTION. Accordingly, all pending motions,

specifically including appellant’s motion for determination of jurisdiction, motion for court

appointed attorney, and motion for discovery and to compel are all DISMISSED as moot.

GINA M. BENAVIDES Justice

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

Delivered and filed the 15th day of October, 2020.