Opinion
NUMBER 13-19-00568-CR
12-12-2019
ALEJANDRO SOTO VILLARREAL, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 93rd District Court of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Perkes
Memorandum Opinion by Justice Longoria
Appellant, Alejandro Soto Villarreal, attempted to perfect an appeal from a conviction for unlawful possession of a firearm. We dismiss the appeal for want of jurisdiction.
This Court's appellate jurisdiction in a criminal case is invoked by a timely filed notice of appeal. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Absent a timely filed notice of appeal, a court of appeals does not have jurisdiction to address the merits of the appeal and can take no action other than to dismiss the appeal for want of jurisdiction. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998).
The trial court imposed sentence in this matter on May 15, 2019. Appellant filed his notice of appeal on October 28, 2019. On November 6, 2019, the Clerk of this Court notified appellant that it appeared that the appeal was not timely perfected and that the appeal would be dismissed if the defect was not corrected within ten days from the date of receipt of the Court's directive. Appellant has not filed a response to the Court's directive.
The trial court's certification of the defendant's right to appeal shows that the defendant has no right of appeal and has waived his right to appeal. See TEX. R. APP. P. 25.2(a)(2).
Unless a motion for new trial has been timely filed, a notice of appeal must be filed within thirty days after the day sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order. TEX. R. APP. P. 26.2(a)(1). Where a timely motion for new trial has been filed, the notice of appeal must be filed within ninety days after the day sentence is imposed or suspended in open court. See id. 26.2(a)(2). The time within which to file the notice may be enlarged if, within fifteen days after the deadline for filing the notice, the party files the notice of appeal and a motion complying with Rule 10.5(b) of the Texas Rules of Appellate Procedure. See id. 26.3.
Appellant's notice of appeal, filed more than five months after sentence was imposed, was untimely, and accordingly, we lack jurisdiction over the appeal. See Slaton, 981 S.W.2d at 210. Appellant may be entitled to an out-of-time appeal by filing a post-conviction writ of habeas corpus returnable to the Texas Court of Criminal Appeals; however, the availability of that remedy is beyond the jurisdiction of this Court. See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 3(a); see also Ex parte Garcia, 988 S.W.2d 240 (Tex. Crim. App. 1999).
The appeal is DISMISSED FOR WANT OF JURISDICTION.
NORA L. LONGORIA
Justice Do not publish.
See TEX. R. APP. P. 47.2(b). Delivered and filed the 12th day of December, 2019.