Opinion
No. 05-17-00256-CR
03-31-2017
FRANK ALEMAN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 5 Dallas County, Texas
Trial Court Cause No. F04-40832-L
MEMORANDUM OPINION
Before Justices Evans, Stoddart, and Boatright
Opinion by Justice Evans
Frank Aleman appeals his conviction for aggravated sexual assault of a child younger than fourteen years of age. In February 2006, appellant entered an open plea of guilty and was placed on deferred adjudication probation for ten years. In 2016, his probation was extended until February 10, 2017. In January 2017, the State filed a motion to proceed with an adjudication of guilt. On January 24, 2017, after appellant pleaded true to the allegations in the State's motion to proceed, the trial court found him guilty and assessed punishment at five years in prison.
Jurisdiction concerns the court's power to hear and determine a case. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). The jurisdiction of an appellate court must be legally invoked; if it is not, "the power of the court to act is as absent as if it did not exist." Id. at 523. Whether an appellate court has jurisdiction to hear and determine a case "is not whether the appeal is precluded by law, but whether the appeal is authorized by law." Blanton v. State, 369 S.W.3d 894, 902 (Tex. Crim. App. 2012). The right to appeal in a criminal case is statutorily created. McKinney v. State, 207 S.W.3d 366, 374 (Tex. Crim. App. 2006); Griffin v. State, 145 S.W.3d 645, 646 (Tex. Crim. App. 2004); see TEX. CODE CRIM. PROC. ANN. art. 44.02 (West 2006) (providing right of appeal for defendant); TEX. R. APP. P. 25.2(a)(2) (rules for appeal by defendant). Appellate courts may consider appeals by criminal defendants only after conviction or the entry of an appealable order and a timely filed notice of appeal. See Wright v. State, 969 S.W.2d 588, 589 (Tex. App.-Dallas 1998, no pet.); TEX. R. APP. P. 26.2.
Here, the judgment was signed January 24, 2017. Absent a timely motion for new trial, appellant's notice of appeal was due thirty days later, or February 23, 2017. TEX. R. APP. P. 26.2(a)(1). His notice of appeal was filed in the trial court on March 7, 2017, and no motion to extend time to file the notice of appeal was filed in this Court. By letter dated March 10, 2017, we notified appellant and the State about our concerns that we lacked jurisdiction, and directed appellant to file a letter brief and any necessary supplemental record in order to demonstrate we have jurisdiction. We did not receive a response. Under these circumstances, we conclude we lack jurisdiction over this appeal. See TEX. R. APP. P. 26.3.
We dismiss this appeal for want of jurisdiction.
/David W. Evans/
DAVID EVANS
JUSTICE Do Not publish
TEX. R. APP. P. 47.2(b)
170256F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 5, Dallas County, Texas
Trial Court Cause No. F04-40832-L.
Opinion delivered by Justice Evans, Justices Stoddart and Boatright participating.
Based on the Court's opinion of this date, we DISMISS this appeal for want of jurisdiction. Judgment entered this 31st day of March, 2017.