Opinion
No. 05-19-01322-CR No. 05-19-01323-CR
07-13-2020
MAX BOVA NEELY, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 291st Judicial District Court Dallas County, Texas
Trial Court Cause Nos. F19-55234-U & F19-55235-U
ORDER
Appellant entered open pleas of guilty to aggravated robbery with a deadly weapon and unlawful possession of a firearm by a felon. He also pleaded true to having been previously convicted of two felony offenses. The trial court found him guilty as charged and assessed punishment, enhanced by the two prior felony convictions, at forty years in prison for each offense. Appellant's notices of appeal were filed on October 18, 2019. The clerk's and reporter's records were filed as were appellant's brief and the State's brief.
On June 18, 2020, appellant filed a motion entitled "Combination Tex. R. App. P. 42.2 Motion for Withdrawal and Tex. R. App. P. 2 Motion for Resetting of Appellate Briefing Schedule for Appellant to Procure Services of Appellate Counsel of His Own Choice and for Filing by Such New Counsel of a New Appeal Brief under the Terms of the Reset Briefing Schedule." In the body of the motion, appellant asks the Court to "withdraw [his] pending appeals, permit [him] to secure counsel of his choice, and to reset the appellate briefing schedule." Attached to the motion are two unsworn declarations signed by appellant in which he states he desires to withdraw his appeals and has instructed his appointed counsel to withdraw his appeals so he may hire new counsel. Counsel asserts the Court may use rule of appellate procedure 2 to suspend the usual application of the rules so as to allow the relief appellant seeks. For the reasons that follow, we decline to grant appellant the relief he seeks.
To appeal one's conviction, an appellant must file a timely notice of appeal, i.e., the notice of appeal must be filed thirty days after the trial court's judgment or, if a timely motion for new trial was filed, ninety days after the trial court's judgment. See TEX. R. APP. P. 25.2(b), 26.2(a). A notice of appeal filed outside this time frame is untimely and will result in the appeal being dismissed for want of jurisdiction. Castillo v. State, 369 S.W.3d 196, 198 (Tex. Crim. App. 2012). Courts may not use rule 2 to enlarge the time for perfecting an appeal. Slaton v. State, 981 S.W.2d 208, 209-10 (Tex. Crim. App. 1998); see also Cuellar v. State, No. 07-18-00393-CR, 2018 WL 6175850, at *1 (Tex. App.—Amarillo Nov. 26, 2018, no pet.). Once the time for filing a notice of appeal has passed, a defendant's only recourse is to file a writ of habeas corpus seeking an out-of-time appeal. See Portley v. State, 89 S.W.3d 188, 189-90 (Tex. App.—Texarkana 2002, no pet.).
A party who files a motion to withdraw his appeal seeks to dismiss his appeal. See TEX. R. APP. P. 42.2(a). If the Court dismisses appellant's appeals, absent habeas relief, appellant will be unable to pursue new appeals because the time period for filing timely notices of appeal has long expired. See TEX. R. APP. P. 26.2(a). Because filing a timely notice of appeal is a jurisdictional requirement, the Court would be unable to use rule 2 to enlarge the time for filing appellant's new notices of appeal. See Slaton, 981 S.W.2d at 209-10; Cuellar, 2018 WL 6175850, at *1. Thus, we conclude appellant's stated desire to withdraw his appeals is inconsistent with his stated desire to hire new counsel and to reset the appellate briefing schedule. Because the motion and accompanying unsworn declarations do not provide a sufficient level of certainty that appellant truly desires to withdraw his appeals, we DENY relief. See TEX. R. APP. P. 42.2(a) (providing appellate court may dismiss appeal on appellant's motion).
/s/ ROBERT D. BURNS, III
CHIEF JUSTICE