Opinion
NUMBER 13-18-00229-CR
06-07-2018
CHARLES KRUEGER, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 347th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Longoria
Memorandum Opinion by Justice Benavides
Appellant Charles Krueger attempted to perfect an appeal from a conviction for sexual assault and assault of a family or household member with a previous conviction. See TEX. PEN. CODE ANN. §§ 22.01, 22.011 (West, Westlaw through 2017 1st C.S.). Sentence was imposed in this cause on February 22, 2018. Appellant did not file a motion for new trial and filed his notice of appeal on April 24, 2018. We dismiss the appeal for want of jurisdiction.
On April 25, 2018, the Clerk of this Court notified appellant that it appeared that the appeal was not timely perfected. Appellant was advised that the appeal would be dismissed if the defect was not corrected within ten days from the date of receipt of the Court's directive. Appellant did not correct the defect or file a response to this Court's notice. Instead, appellant's counsel filed a letter stating that the appellant had "filed a motion with the trial court to amend its Certification of the Defendant's Right to Appeal." Appellant requested that this Court retain this appeal on its docket until the trial court had ruled on his motion because if the trial court granted the motion, "the defect will be cured."
Texas Rule of Appellate Procedure 26.2 provides that an appeal is perfected when notice of appeal is filed within thirty days after the day sentence is imposed or suspended in open court unless a motion for new trial is timely filed. TEX. R. APP. P. 26.2(a)(1); see Rodarte v. State, 860 S.W.2d 108, 109 (Tex. Crim. App. 1993); Lair v. State, 321 S.W.3d 158, 159 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd). The time within which to file the notice of appeal may be enlarged if, within fifteen days after the deadline for filing the notice, the party files the notice of appeal and a motion complying with Rule 10.5(b) of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 26.3.
Here, appellant was sentenced on February 22, 2018 and he did not file a motion for new trial. Appellant's notice of appeal was due to have been filed on or before March 26, 2018. See id. R. 26.2(a)(1); id. R. 4.1(a). Appellant did not file a motion for extension of time within the fifteen-day period of time provided by the appellate rules. See id. R. 26.3.
"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 v. State, 918 S.W.2d 519, 523 (Tex. Crim .App.1996); see Lair, 321 S.W.3d at 159; see also Ex parte Agostadero, No. 14-13-00975-CR, 2014 WL 1622772, at *1 (Tex. App.—Houston [14th Dist.] Apr. 22, 2014, pet. ref'd) (not designated for publication).
Absent a timely filed notice of appeal, a court of appeals does not obtain jurisdiction to address the merits of the appeal in a criminal case and can take no action other than to dismiss the appeal for want of jurisdiction. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998). Appellant may be entitled to an out-of-time appeal by filing a post-conviction writ of habeas corpus returnable to the Texas Court of Criminal Appeals; however, the availability of that remedy is beyond the jurisdiction of this Court. See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 3(a) (West, Westlaw through 2017 1st C.S.); see also Ex parte Garcia, 988 S.W.2d 240, 240 (Tex. Crim. App. 1999) (en banc) (per curiam); Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex.Crim.App.1991).
The appeal is DISMISSED FOR WANT OF JURISDICTION.
GINA M. BENAVIDES,
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 7th day of June, 2018.