Opinion
NUMBER 13-14-00056-CR
02-20-2014
COLE PETERS, APPELLANT, v. THE STATE OF TEXAS, APPELLEE.
On appeal from the 214th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Perkes
Memorandum Opinion Per Curiam
Appellant, Cole Peters, attempted to perfect an appeal from a conviction for theft. We dismiss the appeal for want of jurisdiction.
Sentence in this matter was imposed on December 17, 2013. No motion for new trial was filed. Notice of appeal was filed on January 27, 2014. On January 28, 2014, 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. By response filed on February 11, 2014, counsel states that she was appointed to represent appellant on January 17, 2014, and because she was appointed to represent appellant after the deadline to file the notice of appeal, she requests the Court deem the notice timely.
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). The time within which to file the notice 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 id. 26.3.
Appellant's notice of appeal was due to have been filed on or before January 16, 2014. See TEX. R. APP. P. 26.2(a)(2). Although the notice of appeal herein was filed within the fifteen day time period, no such motion for extension of time was filed within the fifteen day time period. See id.
This Court's appellate jurisdiction in a criminal case is invoked by a timely filed notice of appeal. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). "When a notice of appeal is filed within the fifteen-day period but no timely motion for extension of time is filed, the appellate court lacks jurisdiction." Olivo, 918 S.W.2d at 522. 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) (Vernon 2005); see also Ex parte Garcia, 988 S.W.2d 240 (Tex. Crim. App. 1999).
The appeal is DISMISSED FOR WANT OF JURISDICTION.
PER CURIAM Do not publish.
TEX. R. APP. P. 47.2(b).