Timothy Demarre'a Lewis v. State

• Court: Court of Appeals of Texas
• Decided: August 16, 2016
• Docket: 01-16-00178-CR
• Status: Published

Opinion

Opinion issued August 16, 2016

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-16-00177-CR NO. 01-16-00178-CR ——————————— TIMOTHY DEMARRE’A LEWIS, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 180th District Court Harris County, Texas Trial Court Case Nos. 1304258 & 14411901

MEMORANDUM OPINION Appellant, Timothy Demarre’a Lewis, pleaded guilty to the first-degree

felony offense of aggravated robbery—over sixty-five years old or disabled, without

1 Appellate cause no. 01-16-00177-CR; trial court cause no. 1304258. Appellate cause no. 01-16-00178-CR; trial court cause no. 1441190. an agreed punishment recommendation in the underlying trial court cause number

1304258.2 The trial court deferred adjudicating appellant’s guilt and placed him on

community supervision for a period of four years in 2011.3

The State subsequently moved to adjudicate appellant’s guilt in 2014,

alleging that he had violated the conditions of his community supervision by, among

other things, committing a new crime, the first-degree felony offense of aggravated

robbery—deadly weapon, charged in the second underlying trial court cause number

1441190.4 Appellant pleaded true to this allegation and, without an agreed

punishment recommendation, pleaded guilty to this new offense.

On May 28, 2015, the trial court found the alleged violation of appellant’s

community supervision true, adjudicated his guilt in trial court cause number

1304258, and assessed his punishment at twenty-five years’ confinement. On the

same day, trial court cause number 1441190, the trial court also found appellant

guilty and assessed his punishment at twenty-five years’ confinement, with the

sentences to be served concurrently.

The trial court certified that these were not plea-bargain cases and that

appellant has a right of appeal. Appellant did not file a notice of appeal in each case

2 See TEX. PENAL CODE ANN. § 29.03(a)(3)(A), (b) (West Supp. 2015). 3 See TEX. CODE CRIM. PROC. ANN. art. 42.12 § 5(a) (West Supp. 2015). 4 See TEX. PENAL CODE ANN. § 29.03(a)(2), (b); see TEX. CODE CRIM. PROC. ANN. art. 42.12 §§ 5(b), 21(e). 2 until February 15, 2016. And on that date, the trial court granted counsel’s motion

to withdraw but did not appoint new counsel. We dismiss the appeals for want of

jurisdiction.

A criminal defendant’s notice of appeal must be filed within thirty days after

the sentence is imposed or suspended in open court, or after the day the trial court

enters an appealable order, if the defendant has not filed a motion for new trial.

See TEX. R. APP. P. 26.2(a)(1). An appellant may obtain an extension by filing the

notice of appeal in the trial court and a motion for extension of time in the appellate

court within fifteen days after the deadline passes. See id. 26.3.

A notice of appeal that complies with the requirements of rule 26 is essential

to vest the court of appeals with jurisdiction. See Slaton v. State, 981 S.W.2d 208,

210 (Tex. Crim. App. 1998); Olivo v. State, 918 S.W.2d 519, 522–23 (Tex. Crim.

App. 1996). If an appeal is not timely perfected, a court of appeals does not obtain

jurisdiction to address the merits of the appeal. See Slaton, 981 S.W.2d at 210.

Here, the trial court signed both judgments on May 28, 2015, and imposed the

sentences on that date. Appellant did not timely file a motion for new trial or

extension of time to file a notice of appeal, making his notices of appeal due by June

29, 2015. See TEX. R. APP. P. 4.1(a), 26.2(a)(1), 26.3. Appellant’s notices of appeal

were not filed until February 15, 2016, more than eight months after the judgments

were signed. See id. 26.2(a)(1). Thus, under these circumstances, we can take no

3 action other than to dismiss these appeals for want of jurisdiction. See Slaton, 981

S.W.2d at 210; Olivo, 918 S.W.2d at 526.

Conclusion Accordingly, we dismiss these appeals for want of jurisdiction. See TEX. R.

APP. P. 43.2(f). We dismiss any pending motions as moot.5

PER CURIAM Panel consists of Chief Justice Radack and Justices Higley and Huddle.

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

5 However, we note that appellant is not without a remedy and may file a writ of habeas corpus in the trial court, made returnable to the Texas Court of Criminal Appeals, seeking leave to file an out–of–time appeal. See, e.g., Ex parte Parodi, PD-1740-11, 2012 WL 669981, at *1 (Tex. Crim. App. Feb. 29, 2012) (not designated for publication) (noting “Article 11.07 writ practice of granting an out– of–time appeal when either the appellate attorney fails to properly file a notice of appeal or when there is a breakdown in the system that prevents the filing of a proper notice of appeal.”) (internal quotation marks and citations omitted). 4