Opinion
NUMBER 13-15-00587-CR
02-04-2016
EX PARTE BENNY GAONA BARRIENTOS
On appeal from the 357th District Court of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Longoria
Memorandum OpinionPer Curiam
Appellant, Benny Gaono Barrientos, filed a post-conviction application for habeas corpus with the trial court pursuant to article 11.07 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (West, Westlaw through 2015 R.S.). On June 8, 2015, the trial court issued findings of fact, recommended that the application be dismissed, and ordered the district clerk to prepare and forward the record to the clerk of the Texas Court of Criminal Appeals. On December 8, 2015, appellant filed a pro se appeal from this order. We dismiss this appeal for lack of jurisdiction.
On December 10, 2015, 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 failed to respond to the Court's directive.
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).
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. R. 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. R. 26.3.
Appellant's notice of appeal, filed six months after sentence was imposed, was untimely, and accordingly, we lack jurisdiction over the appeal. See Slaton, 981 S.W.2d at 210. Moreover, jurisdiction to grant post-conviction habeas corpus relief in felony cases rests exclusively with the Texas Court of Criminal Appeals. TEX. CODE CRIM. PROC. ANN. art. 11.07, § 5; Bd. of Pardons & Paroles ex rel. Keene v. Court of Appeals for the Eighth Dist., 910 S.W.2d 481, 483 (Tex. Crim. App. 1995); In re McAfee, 53 S.W.3d 715, 717-18 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding). Once an application for writ of habeas corpus has been filed under article 11.07, the trial court makes any necessary findings of fact then forwards its findings and the record to the Texas Court of Criminal Appeals for a final ruling on the application for relief. See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 5. Therefore, we are without jurisdiction. The appeal is DISMISSED FOR LACK OF JURISDICTION.
PER CURIAM Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 4th day of February, 2016.