Opinion
NUMBER 13-18-00674-CR
01-31-2019
ALTON DILWORTH, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court of DeWitt County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
Memorandum Opinion by Justice Benavides
Appellant Alton Dilworth attempted to perfect an appeal from a conviction for aggravated assault with a deadly weapon. See TEX. PEN. CODE ANN. § 22.02 (West, Westlaw through 2017 1st C.S.). Sentence was imposed in this cause on August 26, 2004. Appellant filed his pro se notice of appeal on December 10, 2018. We dismiss the appeal for want of jurisdiction.
On December 20, 2018, the Clerk of this Court notified appellant that it appeared that the appeal was not timely perfected. Appellant was advised 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 did not correct the defect but did file a "notice" requesting an extension of time.
Texas Rule of Appellate Procedure 26.2 provides that an appeal is perfected when notice of appeal is filed within thirty days after the day sentence is imposed or suspended in open court unless a motion for new trial is timely filed. TEX. R. APP. P. 26.2(a)(1); see Rodarte v. State, 860 S.W.2d 108, 109 (Tex. Crim. App.1993); Lair v. State, 321 S.W.3d 158, 159 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd). 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 TEX. R. APP. P. 26.3.
Appellant's notice of appeal was due to have been filed in 2004 but was not filed until 2018, fourteen years later. See id. R. 26.2(a)(1); Rodarte, 860 S.W.2d at 109; Lair, 321 S.W.3d at 159. Appellant's motion for extension of time, also filed fourteen years late, is likewise untimely. See TEX. R. APP. P. 26.3. We deny appellant's motion for extension of time.
Absent a timely filed notice of appeal, a court of appeals does not obtain 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. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998). 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) (West, Westlaw through 2017 1st C.S.); see also Ex parte Garcia, 988 S.W.2d 240, 241 (Tex. Crim. App. 1999).
We DISMISS this appeal for want of jurisdiction.
GINA M. BENAVIDES,
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 31st day of January, 2019.