Opinion
NO. 01-16-00265-CR
06-28-2016
EX PARTE ALVARO GALLARDO OLVERA
On Appeal from the 300th District Court Brazoria County, Texas
Trial Court Cause No. 17968-A
MEMORANDUM OPINION
In 1987, after appellant, Alvaro Gallardo Olvera, pleaded guilty to the felony offense of possession of a controlled substance, the trial court deferred adjudication of appellant's sentence by placing him on community supervision for four years. On January 28, 2016, nearly twenty-nine years later, appellant, through counsel, filed a post-conviction application for a writ of habeas corpus in the trial court, and the district attorney filed an answer. On February 9, 2016, the trial court denied appellant's habeas application. On March 24, 2016, the appellant attempted to appeal from the order denying his habeas application, but no trial court's certification of appellant's right of appeal was attached to the letter of assignment. We dismiss the appeal for lack of jurisdiction.
An appeal must be dismissed if a certification showing that the defendant has the right of appeal has not been made part of the record. TEX. R. APP. P. 25.2(d); see Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005). The Clerk of this Court requested a certification of appellant's right of appeal from the February 9, 2016 order, if any, to be filed by the trial clerk in a supplemental clerk's record because there was no certification attached to the notice of appeal. See TEX. R. APP. P. 25.2(a)(2), (d), 31.1, 37.1. On June 2, 2016, the trial clerk filed a supplemental clerk's record in this Court including a certificate of fact confirming that there was no certification of appellant's right of appeal in the trial court's records for the February 9, 2016 order.
The underlying facts above were summarized from the trial court's docket sheet attached to the supplemental clerk's record. Although the Clerk of this Court notified appellant's counsel, on April 8, 2016, that this appeal was subject to dismissal for want of prosecution because the clerk's record had not been filed in this Court due to appellant's failure to make payment arrangements with the trial clerk, appellant failed to timely respond. See TEX. R. APP. P. 37.3(b). --------
Although Rule 25.2(d) requires this Court to dismiss a criminal appeal when the appellate record does not contain a certification showing that appellant has the right to appeal, Rule 44.4 prohibits us from dismissing a criminal appeal based on the lack of a valid certification if the appellant has a right to appeal. See TEX. R. APP. P. 44.4(a); see also Dears, 154 S.W.3d at 615. Although this Court has appellate jurisdiction over orders denying Article 11.072 habeas applications, it is still necessary for the appellant to timely appeal to invoke our jurisdiction. See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 8 (West Supp. 2015); see id. art. 44.02; TEX. R. APP. P. 25.2(a)(2), 26.2(a)(1), 31.1; cf. Denby v. State, 627 S.W.2d 435, 435 (Tex. App.—Houston [1st Dist.] 1981, orig. proceeding).
A criminal defendant's notice of appeal must be filed within thirty days after the day the trial court enters an appealable order, if the defendant has not filed a motion for new trial. See TEX. R. APP. P. 26.2(a)(1). The appellant may obtain an extension by filing both the notice of appeal in the trial court and a motion for extension of time in the appellate court within fifteen days after the deadline passes. See id. 26.3.
The Texas Court of Criminal Appeals has interpreted Rule 26.3 strictly to require a criminal appellant to file both the notice of appeal and extension motion within the fifteen-day grace period. See Olivo v. State, 918 S.W.2d 519, 522-26 (Tex. Crim. App. 1996); see also Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (applying Olivo to Rule 26). A notice of appeal that complies with Rule 26 is essential to vest the appellate court with jurisdiction. See Slaton, 981 S.W.2d at 210; Olivo, 918 S.W.2d at 522-23. "When a notice of appeal, but no motion for extension of time, is filed within the fifteen-day period, the court of appeals lacks 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.
Here, although appellant's March 24, 2016 notice of appeal was filed within fifteen days after the March 10, 2016 deadline, no motion for extension of time was filed in this Court and, therefore, the notice of appeal was untimely. See TEX. R. APP. P. 26.2(a)(1), 26.3(b). Thus, under these circumstances, we can take no action other than to dismiss this appeal for want of jurisdiction. See Slaton, 981 S.W.2d at 210; Olivo, 918 S.W.2d at 523.
CONCLUSION
Accordingly, we dismiss this appeal for want of jurisdiction. See TEX. R. APP. P. 25.2(d), 43.2(f).
PER CURIAM Panel consists of Justices Higley, Bland, and Massengale. Do not publish. TEX. R. APP. P. 47.2(b).