Opinion
NO. 02-18-00074-CR NO. 02-18-00075-CR
04-19-2018
STEVEN HAYES APPELLANT v. THE STATE OF TEXAS STATE
FROM THE 158TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NOS. F-2008-1553-B, F-2005-1603-B MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Steven Hayes attempts to appeal from his convictions for aggravated sexual assault and violation of the sex-offender-registration requirements. See Tex. Penal Code Ann. § 22.021 (West Supp. 2017); Tex. Code Crim. Proc. Ann. art. 62.102 (West Supp. 2017). On September 11, 2009, Hayes pleaded nolo contendere to the former offense and guilty to the latter pursuant to plea bargains, and in accordance with those plea bargains, the trial court sentenced him to ten years' confinement in the Institutional Division of the Texas Department of Criminal Justice for each offense, with the sentences to run concurrently. Over eight years later, on February 14, 2018, Hayes filed a "Motion for Notice of Appeal" from the trial court's judgments—which we construe as a notice of appeal—along with a "Motion for Extension of Time."
Hayes also waived his right of appeal as part of the plea bargains. Consistent with Hayes's plea bargains, the "Trial Court's Certification of Defendant's Right of Appeal" in each case states that this "is a plea-bargain case, and the defendant has NO right of appeal," and "the defendant has waived the right of appeal." See Tex. R. App. P. 25.2(a)(2), (d).
Hayes cites to Federal Rule of Appellate Procedure 4, which does not apply in this court. See Fed. R. App. P. 4.
On February 21, 2018, we notified Hayes of our concern that we lack jurisdiction over his appeals because his notice of appeal was not timely filed. See Tex. R. App. P. 26.2(a). We warned Hayes that we would dismiss his appeals unless he or any party responded showing grounds for continuing the appeals. See Tex. R. App. P. 44.3. Hayes responded with another "Motion for Extension of Time."
We also warned Hayes that his appeals could be dismissed based upon the trial court's certifications. See Tex. R. App. P. 25.2(d), 44.3.
Hayes's deadline for filing a notice of appeal from his September 11, 2009 convictions expired over eight years ago. See Tex. R. App. P. 26.2(a), 26.3. Our appellate jurisdiction is triggered through a timely filed notice of appeal. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). If a notice of appeal is not timely filed under rule 26.2, we do not have jurisdiction to address the merits of the appeal and may take no action—including granting an out-of-time appeal—other than dismissal. See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998). Accordingly, we deny Hayes's motions, and we dismiss his appeals for want of jurisdiction. See Tex. R. App. P. 26.2(a), 26.3, 43.2(f).
The proper procedure for Hayes to seek an out-of-time appeal is through a writ of habeas corpus. See Tex. Code Crim. Proc. Ann. art. 11.07 (West 2015); Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (orig. proceeding) (holding writ of habeas corpus pursuant to article 11.07 governs out-of-time appeals from felony convictions).
/s/ Elizabeth Kerr
ELIZABETH KERR
JUSTICE PANEL: KERR, PITTMAN, and BIRDWELL, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: April 19, 2018