Summary
dismissing appeal for want of jurisdiction because trial court lacked authority to grant appellant an out of time appeal
Summary of this case from Loewe v. StateOpinion
No. 11-16-00144-CR
06-16-2016
JERRY WAYNE HOGG, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 106th District Court Dawson County, Texas
Trial Court Cause No. 14-7444
MEMORANDUM OPINION
Jerry Wayne Hogg, Appellant, has filed an untimely notice of appeal from a conviction for the felony offense of driving while intoxicated. We dismiss the appeal.
The documents on file in this case indicate that Appellant's sentence was imposed on June 24, 2015, and that his notice of appeal was filed in the district clerk's office on May 27, 2016, almost a year after Appellant was sentenced. Pursuant to TEX. R. APP. P. 26.2(a), a notice of appeal is due to be filed either (1) within thirty days after the date that sentence is imposed in open court or (2) if the defendant timely files a motion for new trial, within ninety days after the date that sentence is imposed in open court. A notice of appeal must be in writing and filed with the clerk of the trial court. TEX. R. APP. P. 25.2(c)(1). The documents on file in this court reflect that Appellant's notice of appeal was filed with the clerk of the trial court 338 days after sentence was imposed. The notice of appeal was, therefore, untimely. Absent a timely filed notice of appeal or the granting of a timely motion for extension of time, we do not have jurisdiction to entertain this appeal. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998); Olivo v. State, 918 S.W.2d 519, 522-23 (Tex. Crim. App. 1996); Rodarte v. State, 860 S.W.2d 108, 110 (Tex. Crim. App. 1993).
When the appeal was filed in this court, we notified Appellant by letter that the notice of appeal appeared to be untimely and that the appeal may be dismissed for want of jurisdiction. We requested that Appellant respond to our letter and show grounds to continue.
Appellant promptly responded by filing a statement in support of his out-of-time appeal. Appellant asserts that he sought and obtained permission from the trial court to file an out-of-time appeal. Appellant's assertion appears to be supported by the trial court's second certification of Appellant's right of appeal, which the trial court signed on the same day that Appellant filed his notice of appeal. In that certification, the trial court indicated that this is a plea-bargain case but that the trial court has given its permission to appeal. Appellant also asserts that judicial economy mandates that we proceed with this appeal.
We have considered Appellant's response; however, we are without authority to proceed with this appeal. Neither the trial court nor this court has jurisdiction to grant an out-of-time appeal. Article 11.07 of the Texas Code of Criminal Procedure vests complete jurisdiction over postconviction relief from final felony convictions in the Texas Court of Criminal Appeals. TEX. CODE CRIM. PROC. ANN. art. 11.07 (West 2015); Hoang v. State, 872 S.W.2d 694, 697 (Tex. Crim. App. 1993); Ater v. Eighth Ct. of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991). The Court of Criminal Appeals is the only court with jurisdiction to consider a motion for an out-of-time appeal. See Ater, 802 S.W.2d at 243. The appropriate vehicle for Appellant to seek an out-of-time appeal is for him to pursue a writ of habeas corpus from the Court of Criminal Appeals pursuant to Article 11.07.
Accordingly, we dismiss this appeal for want of jurisdiction.
PER CURIAM June 16, 2016 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.