Opinion
No. 05-16-01442-CR
12-20-2016
JOSE RICARDO TOME, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 204th Judicial District Court Dallas County, Texas
Trial Court Cause No. F10-72297-Q
MEMORANDUM OPINION
Before Justices Lang, Brown, and Whitehill
Opinion by Justice Lang
Jose Ricardo Tome appeals his conviction for aggravated sexual assault of a child. On April 7, 2014, appellant entered a negotiated plea of guilty. Adjudication of appellant's guilt was deferred, and he was placed on community supervision for ten years and assessed a $2000 fine. When the State filed a motion to proceed with adjudication of guilt, appellant entered an open plea of true to the State's allegations. On October 30, 2015, the trial court found appellant guilty and assessed punishment at twenty-five years in prison. Appellant then filed this appeal. We conclude we lack of jurisdiction.
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." See 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. See 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 also 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(a).
The trial court's judgment was signed October 30, 2015. Appellant filed a timely motion for new trial on November 11, 2015; therefore, his notice of appeal was due January 29, 2016. See TEX. R. APP. P. 26.2(a)(2). Appellant filed his notice of appeal in the trial court on June 8, 2016, outside of the thirty-day period allowed by rule 26.2. Because his notice of appeal was untimely, we lack jurisdiction to "dispose of the purported appeal in any manner other than by dismissing it for lack of jurisdiction." Olivo, 918 S.W.2d at 523; see Boyd v. State, 971 S.W.2d 603, 605 (Tex. App.—Dallas 1998, no pet.).
We dismiss this appeal for want of jurisdiction.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE Do Not Publish
TEX. R. APP. P. 47
161442F.U05
JUDGMENT
On Appeal from the 204th Judicial District Court, Dallas County, Texas
Trial Court Cause No. F10-72297-Q.
Opinion delivered by Justice Lang, Justices Brown and Whitehill participating.
Based on the Court's opinion of this date, we DISMISS this appeal for want of jurisdiction. Judgment entered this 20th day of December, 2016.