Opinion
NO. 03-17-00644-CR
11-07-2017
Ex parte Martin Vazquez Gutierrez
FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
NO. CR-16-0239-A , THE HONORABLE R. BRUCE BOYER, JUDGE PRESIDING MEMORANDUM OPINION
Appellant Martin Vazquez Gutierrez seeks to appeal the trial court's denial of his post-conviction application for writ of habeas corpus in which he sought relief from an order of deferred adjudication for indecency with a child by sexual contact. See Tex. Code Crim. Proc. art. 11.072, § 8. We dismiss the appeal for want of jurisdiction.
BACKGROUND
Appellant filed an application for writ of habeas corpus pursuant to Article 11.072 of the Texas Code of Criminal Procedure. See id. art. 11.072, § 1. Without conduct a hearing, the trial court signed an order denying habeas corpus relief on July 12, 2017. See id. art. 11.072, § 6. Thirty days later, on August 11, 2017, appellant filed a Motion for New Trial requesting an evidentiary hearing on his writ application and asking the court to "grant him a new trial in this matter." The trial court did not rule on the motion. Appellant filed his notice of appeal on September 29, 2017.
DISCUSSION
"Timely filing of a written notice of appeal is a jurisdictional prerequisite to hearing an appeal." Castillo v. State, 369 S.W.3d 196, 198 (Tex. Crim. App. 2012); see Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996) ("A timely notice of appeal is necessary to invoke a court of appeals' jurisdiction."). If a notice of appeal is not timely filed, the court of appeals has no option but to dismiss the appeal for lack of jurisdiction. Castillo, 369 S.W.3d at 198; Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998).
Rule 26.2(a) of the Texas Rules of Appellate Procedure prescribes the time period in which notice of appeal must be filed by a defendant in order to perfect appeal in a criminal case. Under the rule, the notice of appeal must be filed:
(1) within 30 days after the day sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order; orTex. R. App. P. 26.2(a)(1), (2).
(2) within 90 days after the day sentence is imposed or suspended in open court if the defendant timely files a motion for new trial.
Significantly, subsection (2) does not include "or after the day the trial court enters an appealable order" in providing for the extended period of time in which to file notice of appeal if a motion for new trial is filed. Id.; see Ex parte Delgado, 214 S.W.3d 56, 58 (Tex. App.—El Paso 2006, pet. ref'd); Welsh v. State, 108 S.W.3d 921, 922 (Tex. App.—Dallas 2003, no pet.); see also Ex parte Roberts, No. 14-08-00575-CR, 2008 WL 3940738, at *1 (Tex. App.—Houston [14th Dist.] Aug. 21, 2008, pet. ref'd) (mem. op., not designated for publication). Thus, under the plain language of Rule 26.2(a), a motion for new trial will extend the time to file a notice of appeal for cases in which sentence is imposed or suspended in open court, but will not extend the time to file a notice of appeal in other cases involving appealable orders. Ex parte Chavez, No. 13-16-00331-CR, 2016 WL 4040252, at *1-2 (Tex. App.—Corpus Christi July 28, 2016, no pet.) (mem. op., not designated for publication); Fowler v. State, No. 01-12-00300-CR, 2013 WL 653276, at *1 (Tex. App.—Houston [1st Dist.] Feb. 21, 2013, no pet.) (mem. op., not designated for publication); Roberts, 2008 WL 3940738, at *1; Delgado, 214 S.W.3d at 58; Welsh, 108 S.W.3d at 922. Consequently, when a defendant is appealing an order that does not involve the imposition or suspension of a sentence, the notice of appeal must be filed within the 30-day time period provided by Rule 26.2(a)(1). Chavez, 2016 WL 4040252, at *1; Roberts, 2008 WL 3940738, at *1; Delgado, 214 S.W.3d at 58; Welsh, 108 S.W.3d at 922.
An order denying habeas corpus relief under Article 11.072 is an appealable order. Tex. Code Crim. Proc. art. 11.072, § 8. However, such an order does not impose or suspend a sentence. Ex parte Nugent, No. 01-16-00903-CR, 2017 WL 117323, at *1-2 (Tex. App.—Houston [1st Dist.] Jan. 12, 2017, pet. ref'd) (mem. op., not designated for publication); Chavez, 2016 WL 4040252, at *1; Mireles v. State, No. 02-14-00228-CR, 2014 WL 6601964, at *1 (Tex. App.—Fort Worth Nov. 20, 2014, no pet.) (mem. op., not designated for publication); Fowler, 2013 WL 653276, at *1; Delgado, 214 S.W.3d at 58. Therefore, a motion for new trial filed after the trial court enters an order denying habeas corpus relief is ineffective to extend the appellate timetable under Rule 26.2(a)(2), and an appellant's notice of appeal must be filed within 30 days after the day the trial court enters the order, i.e., within the 30-day time period specified in Rule 26.2(a)(1). Nugent, 2017 WL 117323, at *1-2; Chavez, 2016 WL 4040252, at *1; Mireles, 2014 WL 6601964, at *1; Fowler, 2013 WL 653276, at *1; Delgado, 214 S.W.3d at 58; Welsh, 108 S.W.3d at 923.
In this case, the trial court entered the order denying appellant's application for writ of habeas corpus relief on July 12, 2017. Appellant's notice of appeal was therefore due on August 11, 2017. See Tex. R. App. P. 4.1(a), 26.2(a)(1). Appellant filed his notice of appeal on September 29, 2017. Thus, appellant's notice of appeal—filed 80 days after the trial court entered the appealable order and 49 days after the deadline for filing the notice of appeal—is untimely. Absent a timely filed notice of appeal, we do not obtain jurisdiction to address the merits of the appeal and can take no action other than to dismiss the appeal for want of jurisdiction. See Castillo, 369 S.W.3d at 198; Slaton, 981 S.W.2d at 210; Olivo, 918 S.W.2d at 522-23.
CONCLUSION
Because appellant did not timely file his notice of appeal, we lack jurisdiction over this appeal. Accordingly, we dismiss this appeal for want of jurisdiction. See Tex. R. App. P. 43.2(f).
/s/_________
Melissa Goodwin, Justice Before Chief Justice Rose, Justices Pemberton and Goodwin Dismissed for Want of Jurisdiction Filed: November 7, 2017 Do Not Publish