Toribio Quintero v. State

• Court: Court of Appeals of Texas
• Decided: February 20, 2013
• Docket: 04-13-00073-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-13-00073-CR

Toribio QUINTERO, Appellant

v.

The STATE of Texas, Appellee

From the 147th District Court, Travis County, Texas Trial Court No. D-1-DC-12-200528 Honorable Bert Richardson, Judge Presiding

PER CURIAM

Sitting: Catherine Stone, Chief Justice Karen Angelini, Justice Sandee Bryan Marion, Justice

Delivered and Filed: February 20, 2013

DISMISSED FOR LACK OF JURISDICTION

The trial court imposed sentence in the underlying cause on September 28, 2012.

Because appellant did not file a motion for new trial, the notice of appeal was due to be filed

October 29, 2012. TEX. R. APP. P. 26.2(a)(1). A motion for extension of time to file the notice

of appeal was due on November 13, 2012. TEX. R. APP. P. 26.3. Appellant filed a notice of

appeal and a motion for extension of time on December 12, 2012.

A timely notice of appeal is necessary to invoke a court of appeals’ jurisdiction. See

Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). A late notice of appeal may be 04-13-00073-CR

considered timely so as to invoke a court of appeals’ jurisdiction if (1) it is filed within fifteen

days of the last day allowed for filing, (2) a motion for extension of time is filed in the court of

appeals within fifteen days of the last day allowed for filing the notice of appeal, and (3) the

court of appeals grants the motion for extension of time. See id.

Because the notice of appeal appeared to be untimely, this court issued an order directing

appellant to show cause why this appeal should not be dismissed for lack of jurisdiction. Our

order noted that appellant’s motion for extension of time referred to a statement contained in a

motion to withdraw filed by trial counsel stating appellant should be appointed new counsel on

appeal. We further noted that the motion did not contain a statement of appellant’s desire to

appeal. Finally, we noted that although the Texas Court of Criminal Appeals could consider the

language in trial counsel’s motion to withdraw in determining whether appellant may be entitled

to an out-of-time appeal, see Ater v. Eighth Court of Appeals, 802 S.W.2d 241 (Tex. Crim. App.

1991) (out-of-time appeal from 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), this court did not

construe the motion as a notice of appeal. See Roberts v. State, 270 S.W.3d 662, 665 (Tex.

App.—San Antonio 2008, no pet.); Rivera v. State, 940 S.W.2d 148, 149 (Tex. App.—San

Antonio 1996, no pet.).

In his response to our show cause order, appellant first argues that trial counsel’s motion

to withdraw could be construed as a notice of appeal. For the reasons previously mentioned in

our show cause order and noted above, we do not construe the motion as a notice of appeal. See

Roberts, 270 S.W.3d at 665, Rivera, 940 S.W.2d at 149. Appellant also argues that this court has

the authority to grant an out-of-time appeal, citing Jones v. State, 98 S.W.3d 700, 703–04 (Tex.

Crim. App. 2003). In Jones, the Texas Court of Criminal Appeals was considering an appeal

from an intermediate appellate court’s affirmance of a trial court’s order denying a habeas -2- 04-13-00073-CR

application. 98 S.W.3d at 702. Although the offense to which the habeas related appears to be a

felony sexual assault, the opinion does not address the basis for the intermediate appellate court’s

jurisdiction over the appeal. Nothing in the opinion, however, detracts from the Texas Court of

Criminal Appeals’ unequivocal statement in Ater that it is the only court with jurisdiction to

consider habeas relief in final post-conviction felony proceedings. 802 S.W.2d at 243; see also

TEX. CODE CRIM. PROC. art. 11.07. Accordingly, we lack jurisdiction to grant appellant an out-

of-time appeal. Because this court lacks jurisdiction to consider appellant’s untimely filed

appeal, we dismiss the appeal for lack of jurisdiction.

DO NOT PUBLISH

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