Steven Phillip Cherry v. State

• Court: Court of Appeals of Texas
• Decided: February 1, 2017
• Docket: 04-16-00524-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-16-00524-CR

Steven Phillip CHERRY, Appellant

v.

The STATE of Texas, Appellee

From the 226th Judicial District Court, Bexar County, Texas Trial Court No. 2015CR6408 Honorable Sid L. Harle, Judge Presiding

PER CURIAM

Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice

Delivered and Filed: February 1, 2017

DISMISSED FOR WANT OF JURISDICTION

A jury found Appellant Steven P. Cherry guilty of burglary as charged in count II of the

indictment, and the trial court sentenced Appellant to thirty-years’ confinement in the Texas

Department of Criminal Justice—Institutional Division. The sentence was imposed on August 9,

2016, and Appellant timely filed a motion for new trial on September 6, 2016. See Olivo v. State,

918 S.W.2d 519, 522 (Tex. Crim. App. 1996).

Because Appellant timely filed a motion for new trial, his notice of appeal was due to be

filed on November 7, 2016. See TEX. R. APP. P. 26.2(a)(2). The clerk’s record contains the trial 04-16-00713-CR

court’s certification of defendant’s right to appeal, see id. R. 25.2(a)(2), but it does not contain a

notice of appeal, see id. R. 26.2(a).

Accordingly, on December 13, 2016, we ordered Appellant to show cause in writing by

January 12, 2017, why this appeal should not be dismissed for want of jurisdiction. See Olivo, 918

S.W.2d at 522 (“A timely notice of appeal is necessary to invoke a court of appeals’ jurisdiction.”).

On December 19, 2016, Appellant filed a pro se response stating he wants to pursue his

appeal. He states his court-appointed trial counsel asked him if he wanted to appeal, he said yes,

but he does not know whether his trial counsel filed a notice of appeal. The trial court appointed

appellate counsel on December 2, 2016.

On January 13, 2017, Appellant’s court-appointed appellate counsel moved this court for

permission to file a late notice of appeal. Counsel notes she was appointed after the deadline to

file a notice of appeal had passed and no notice of appeal was filed.

The appellate record confirms no notice of appeal was filed. “If a notice of appeal is not

timely filed, the court of appeals has no option but to dismiss the appeal for lack of jurisdiction.”

Castillo v. State, 369 S.W.3d 196, 198 (Tex. Crim. App. 2012); accord Olivo, 918 S.W.2d at 522.

Accordingly, Appellant’s motion to file a late notice of appeal is denied. We dismiss this

appeal for want of jurisdiction. 1 See Castillo, 369 S.W.3d at 198; Slaton v. State, 981 S.W.2d 208,

210 (Tex. Crim. App. 1998); Olivo, 918 S.W.2d at 522; Shute v. State, 744 S.W.2d 96, 97 (Tex.

Crim. App. 1988) (no notice of appeal).

DO NOT PUBLISH

1 Appellant may file an application for writ of habeas corpus for permission to pursue an out-of-time appeal. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (West 2015); Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (stating that an out-of-time appeal from a final felony conviction may be sought by filing a writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure).

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