Travis Whiteman v. State

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

TRAVIS WHITEMAN, § No. 08-20-00237-CR

Appellant, § Appeal from the

v. § 368th District Court

THE STATE OF TEXAS, § of Williamson County, Texas1

Appellee. § (TC# 13-0583-K368)

MEMORANDUM OPINION

Travis Whiteman is attempting to appeal his conviction for three counts of possession of

child pornography. Finding that Appellant did not timely file his notice of appeal, we dismiss the

appeal for lack of jurisdiction.

A timely notice of appeal is necessary to invoke this Court’s jurisdiction. Olivo v. State,

918 S.W.2d 519, 522 (Tex.Crim.App. 1996) (en banc). In a criminal case, a defendant’s notice of

appeal is due within thirty days after the day sentence is imposed in open court, or ninety days

after the sentence is imposed in open court if the defendant timely files a motion for new trial. See

TEX.R.APP.P. 26.2(a)(1), (2). While a court of appeals may extend the time to file the notice of

appeal, both the notice of appeal and the extension motion must be filed within fifteen days after

1 We hear this case on transfer from the Third Court of Appeals in Dallas. See TEX.R.APP.P. 41.3.

1 the deadline for filing the notice of appeal. See TEX.R.APP.P. 26.3. In the absence of a timely

filed notice of appeal, a court of appeals does not have 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. See Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998).

Here, the trial court entered the judgment of conviction on August 20, 2013. Appellant

filed this notice of appeal on November 10, 2020. The notice of appeal was not timely filed,

meaning that this Court does not have jurisdiction to entertain a direct appeal from his conviction

at this point in time. To the extent Underwood is requesting the remedy of an out-of-time appeal,

only the Texas Court of Criminal Appeals has jurisdiction to grant Appellant an out-of-time appeal

of his felony convictions. See Ater v. Eighth Court of Appeals, 802 S.W.2d 241 (Tex.Crim.App.

1991) (en banc) (explaining that writ of habeas corpus pursuant to Article 11.07 of the Texas Code

of Criminal Procedure governs out-of-time appeals from felony convictions).

Accordingly, we dismiss this appeal for lack of jurisdiction.

JEFF ALLEY, Chief Justice

December 16, 2020

Before Alley, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)