Walter Allen Setzco v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: September 21, 2022
• Docket: 10-22-00301-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-22-00301-CR

WALTER ALLEN SETZCO, Appellant v.

THE STATE OF TEXAS, Appellee

From the County Court at Law Navarro County, Texas Trial Court No. C41104-CR

MEMORANDUM OPINION

Appellant, Walter Allen Setzco, was convicted by a jury of the offense of assault

family violence with a prior conviction. See TEX. PENAL CODE ANN. § 22.01(b)(2)(A). The

trial court certified Setzco’s right of appeal and, on May 9, 2022, signed the judgment of

conviction. More than four months later, on September 13, 2022, Setzco filed his notice

of appeal challenging his May 9, 2022 conviction. Setzco included with his notice of

appeal a “Motion for Permission for Out of Time Appeal.” In his “Motion for Permission for Out of Time Appeal,” Setzco recognizes that his

notice of appeal is untimely and requests that this Court grant him an out-of-time appeal.

See TEX. R. APP. P. 26.2(a)(1) (“The notice of appeal must be filed . . . within 30 days after

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

enters an appealable order.”); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996)

(“A timely notice of appeal is necessary to invoke a court of appeals’ jurisdiction). We

lack original habeas-corpus jurisdiction and, thus, have no authority to grant an out-of-

time appeal. See Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991)

(explaining that an application for writ of habeas corpus under article 11.07 of the Texas

Code of Criminal Procedure governs out-of-time appeals from felony convictions); Parr

v. State, 206 S.W.3d 143, 144-45 (Tex. App.—Waco 2006, no pet.); Ashorn v. State, 77 S.W.3d

405, 409 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d); see also Ex parte Sanders, No. 05-

20-00729-CR, 2021 Tex. App. LEXIS 2253, at *3 (Tex. App.—Dallas Mar. 24, 2021, no pet.)

(mem. op., not designated for publication).

Accordingly, we dismiss Setzco’s appeal for want of jurisdiction.

STEVE SMITH Justice

Setzco v. State Page 2 Before Chief Justice Gray Justice Johnson, and Justice Smith Appeal dismissed Opinion delivered and filed September 21, 2022 Do not publish [CR25]

Setzco v. State Page 3