Opinion
NO. 01-16-00486-CR
11-08-2016
MAURICIO IZAGUIRRE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court Harris County, Texas
Trial Court Case No. 1341419
MEMORANDUM OPINION
Appellant, Mauricio Izaguirre, pleaded guilty to the first-degree felony offense of murder, without an agreed punishment recommendation, pending a pre-sentence investigation report. Following a pre-sentencing investigation report and hearing, the trial court assessed appellant's punishment at thirty-five years' confinement on April 4, 2016. This sentence is within the applicable range. The trial court certified appellant's right of appeal because this was not a plea-bargain case and appellant had a right of appeal as to punishment. See TEX. R. APP. P. 25.2(a)(2)(B). Appellant filed his pro se notice of appeal on June 1, 2016. We dismiss this appeal for want of jurisdiction.
See TEX. PENAL CODE ANN. § 19.02(b)(1), (c) (West Supp. 2016).
See TEX. PENAL CODE ANN. § 12.32(a) (West Supp. 2016).
A criminal defendant's notice of appeal must be filed within thirty days after the sentence is imposed, if the defendant has not filed a motion for new trial. See TEX. R. APP. P. 26.2(a)(1). An 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.
A notice of appeal that complies with the requirements of rule 26 is essential to vest the court of appeals with jurisdiction. See 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). If an appeal is not timely perfected, a court of appeals does not obtain jurisdiction to address the merits of the appeal. See Slaton, 981 S.W.2d at 210.
Here, the trial court signed appellant's judgment of conviction on April 4, 2016, and imposed the sentence on that date. Appellant did not timely file a motion for new trial or an extension of time to file a notice of appeal, making his notice of appeal due by May 4, 2016. See TEX. R. APP. P. 26.2(a)(1), 26.3. Appellant's notice of appeal was not filed until June 1, 2016, fifty-eight days after the judgment was signed. See id. 26.2(a)(1). 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 526.
Accordingly, we withdraw this Court's July 19, 2016 Order and dismiss this appeal for want of jurisdiction.See TEX. R. APP. P. 43.2(f). We dismiss any pending motions as moot.
This Court's July 19, 2016 Order had abated this case for the appointment of counsel before this Court discovered that the pro se notice of appeal was untimely. However, we note that appellant is not without a remedy and may file a writ of habeas corpus in the trial court, made returnable to the Texas Court of Criminal Appeals, seeking leave to file an out-of-time appeal. See, e.g., Ex parte Parodi, PD-1740-11, 2012 WL 669981, at *1 (Tex. Crim. App. Feb. 29, 2012) (not designated for publication) (noting "Article 11.07 writ practice of granting an out-of-time appeal when either the appellate attorney fails to properly file a notice of appeal or when there is a breakdown in the system that prevents the filing of a proper notice of appeal") (internal quotation marks and citations omitted). --------
PER CURIAM Panel consists of Justices Keyes, Higley, and Lloyd. Do not publish. TEX. R. APP. P. 47.2(b).