Opinion
05-24-00196-CR
02-28-2024
AEBONEE ODOM, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish TEX. R. APP. P. 47.2(b)
On Appeal from the 203rd Judicial District Court Dallas County, Texas Trial Court Cause No. F20-11844
Before Justices Molberg, Pedersen, III, and Goldstein
MEMORANDUM OPINION
KEN MOLBERG JUSTICE
Aebonee Odom appeals his conviction for injury to a child with serious bodily injury. Appellant pleaded guilty without a plea bargain. The trial court found appellant guilty and assessed his punishment at twenty-five years' imprisonment. The trial court sentenced appellant on January 5, 2024. Appellant did not file his notice of appeal until February 14, 2024, and he did not file a motion for extension of time to file notice of appeal. We lack jurisdiction over this appeal, and we dismiss the appeal.
A defendant perfects his appeal by timely filing a written notice of appeal with the trial court clerk. See Tex. R. App. P. 25.2(c). To be timely, the notice of appeal must be filed within thirty days after the date sentence was imposed or within ninety days after sentencing if the defendant timely filed a motion for new trial. See Tex. R. App. P. 26.2(a). The Rules of Appellate Procedure allow the time to file a notice of appeal to be extended if the party files, within fifteen days of the filing deadline, the notice of appeal in the trial court and a motion to extend the time to file the notice of appeal in the court of appeals. See Tex. R. App. P. 10.5(b), 26.3. In the absence of a timely perfected notice of appeal, the Court must dismiss the appeal for lack of jurisdiction. Ex parte Castillo, 369 S.W.3d 196, 198 (Tex. Crim. App. 2012); Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (per curiam).
In this case, the trial court imposed the sentence on January 5, 2024. Appellant did not file a motion for new trial. Therefore, appellant's notice of appeal was due Monday, February 5, 2024. See Tex. R. App. P. 4.1(a). To extend the time to file the notice of appeal until February 20, 2024, appellant had to file by that date both the notice of appeal in the trial court and a motion for extension of time to file the notice of appeal in this Court. See id. 10.5(b), 26.3. Appellant filed his notice of appeal in the trial court on February 14, 2024, which was within fifteen days of when the notice of appeal was due, but he did not file a motion for extension of time to file the brief. "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).
On February 26, 2024, appellant's counsel filed a request for leave to file a motion for extension of time to file notice of appeal. We lack jurisdiction to consider a motion for extension of time to file notice of appeal filed more than fifteen days after the notice of appeal was due. Id. Accordingly, we deny the request.
Although we lack jurisdiction over this appeal, appellant may file an application for writ of habeas corpus to pursue an out-of-time appeal. See Olivo, 918 S.W.2d at 525 n.8 ("the denial of a meaningful appeal due to ineffective assistance of counsel is a proper ground for habeas corpus relief"; case involved notice of appeal filed 15 days after notice of appeal was due but motion for extension was filed more than 15 days of when notice of appeal was due); Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (orig. proceeding) (only the court of criminal appeals has jurisdiction in final post-conviction felony proceedings); see also, e.g., Ramirezfacio v. State, No. 05-23-00032-CR, 2023 WL 333706, at *1 (Tex. App.-Dallas Jan. 20, 2023, no pet.) (mem op., not designated for publication) ("Appellant requests an 'out of time' appeal. Although we lack authority to grant such a request, appellant may file an application for writ of habeas corpus in order to pursue an out-of-time appeal.").
Because appellant did not timely file the notice of appeal or file the notice of appeal and a motion for extension of time to file the notice of appeal within fifteen days after the notice of appeal was due, we lack jurisdiction over this appeal. We dismiss the appeal for want of jurisdiction.
JUDGMENT
Based on the Court's opinion of this date, the appeal is DISMISSED for want of jurisdiction.