Opinion
No. 05-10-01455-CR
Opinion Filed March 18, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 219th Judicial District Court Collin County, Texas, Trial Court Cause No. 219-81061-93.
Before Justices MURPHY, FILLMORE, and MYERS.
MEMORANDUM OPINION
Robby Keith Pope was convicted of a felony driving while intoxicated (DWI) offense in 1994. Pursuant to a plea bargain agreement, punishment was assessed at 270 days' confinement in jail and a $500 fine. On August 10, 2010, appellant filed a "motion for correction of sentence nunc pro tunc," asserting he pleaded guilty to a Class A misdemeanor DWI offense, and that the trial court's 1994 judgment incorrectly recites the offense was a third-degree felony. The trial court denied the judgment nunc pro tunc by written order dated August 26, 2010. Appellant filed a pro se notice of appeal on November 2, 2010. In two issues, appellant contends the trial court abused its discretion by denying the judgment nunc pro tunc because the 270-day sentence reflects the conviction was for a Class A misdemeanor and the sentence was outside the range for third-degree felony, making the sentence void. The State responds that we do not have jurisdiction over the appeal because the notice of appeal is untimely and there is no comparable rule in criminal cases to Texas Rule of Civil Procedure 306a. The State asserts that appellant's remedy is to file an application for writ of habeas corpus seeking an out-of-time appeal. The State also responds that the denial of a motion for judgment nunc pro tunc is not an appealable order, and must be challenged by application for writ of mandamus. For the following reasons, we agree we lack jurisdiction over this appeal. "Jurisdiction concerns the power of a court to hear and determine a case." Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). The jurisdiction of an appellate court must be legally invoked, and if not, "`the power of the court to act is as absent as if it did not exist.'" Id. at 523 (quoting Ex parte Caldwell, 383 S.W.2d 587, 589 (Tex. Crim. App. 1964)). To invoke the Court's jurisdiction, an appellant must file his notice of appeal within thirty days of the date the appealable order is signed. See Tex. R. App. P. 26.2(a)(1). To obtain the benefit of the extension period provided by rule 26.3, an appellant must file both his notice of appeal in the trial court and an extension motion in this Court within the fifteen-day period provided by the rule. See Olivo, 918 S.W.2d at 522; see also Tex. R. App. P. 26.3(a), (b); Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (per curiam). If both the notice of appeal and extension motion are not filed within the fifteen-day period, this Court does not have jurisdiction to take any action except to dismiss the appeal. See Olivo, 918 S.W.2d at 523; Slaton, 981 S.W.2d at 210. In this case, appellant mailed his notice of appeal on November 2, 2010 and it was filed on November 9, 2010. Using November 2, 2010 as the filing date, see Campbell v. State, 320 S.W.3d 338, 342-44 (Tex. Crim. App. 2010), appellant's notice of appeal was not filed until more than two months after the trial judge signed the order denying the motion for judgment nunc pro tunc. Thus, the notice of appeal was untimely. Appellant's late receipt of notice of the trial court's order does not extend the time for him to file his notice of appeal beyond the period provided by rules 26.2(a)(1) and 26.3. Although a party who does not receive notice of a judgment or order is given additional time to file a notice of appeal in a civil case, see Tex. R. App. P. 4.2; Tex. R. Civ. P. 306a, there is no comparable rule for criminal cases. In the absence of a timely notice of appeal, a court of appeals does not obtain jurisdiction to address the merits of an appeal in a criminal case and may take no action other than to dismiss the appeal. See Slaton, 981 S.W.2d at 210. Moreover, the denial of a motion for a judgment nunc pro tunc is not an appealable order. See Castor v. State, 205 S.W.3d 666, 667 (Tex. App.-Waco 2006, no pet.); Allen v. State, 20 S.W.3d 164, 165 (Tex. App.-Texarkana 2000, no pet.). The proper remedy to obtain review of the denial of a motion for judgment nunc pro tunc is by petition for writ of mandamus. Castor, 205 S.W.3d at 667; Allen, 20 S.W.3d at 165. Because appellant's notice of appeal is untimely and the order he challenges is not appealable, we have no jurisdiction over this appeal. Accordingly, we dismiss the appeal for want of jurisdiction.
In some circumstances, out-of-time appeals may be granted by the exercise of original habeas corpus jurisdiction. See Rodriguez v. Court of Appeals, Eighth Supreme Judicial Dist., 769 S.W.2d 554, 557 (Tex. Crim. App. 1989).