Opinion
03-24-00441-CR
08-21-2024
Tony Ramirez, Appellant v. The State of Texas, Appellee
Do Not Publish
FROM THE 460TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-DC-19-207142, THE HONORABLE SELENA ALVARENGA, JUDGE PRESIDING
Before Justices Baker, Smith, and Theofanis
MEMORANDUM OPINION
Thomas J. Baker, Justice
Tony Ramirez appeals the trial court's order denying his application for writ of habeas corpus seeking to challenge his 2020 conviction for driving while intoxicated. See Tex. Code Crim. Proc. art. 11.072; Tex. Penal Code § 49.04, .09(b); see also Ex parte Ramirez, 652 S.W.3d 841, 849 (Tex. App.-Austin 2022, no pet.) (affirming prior denial of habeas application). The order was signed and file-stamped on May 28, 2024. Ramirez's pro se notice of appeal reflects that he prepared it on June 30, 2024, and the file stamp from the trial court's clerk's office reflects that it was filed on July 8, 2024.
For criminal cases, the deadline for filing a notice of appeal is 30 days after the trial court enters an appealable order. See Tex. R. App. P. 26.2(a)(1); see also State v. Wachtendorf, 475 S.W.3d 895, 900 (Tex. Crim. App. 2015) (plurality op.) (noting that principle that "the notice-of-appeal period begins with the trial court's signing of the appealable order" has been "ingrained in the law" for many years). Accordingly, the deadline for perfecting an appeal challenging that ruling was June 27, 2024. However, as set out above, Ramirez's notice of appeal reflects that he prepared the notice of appeal on June 30, 2024. See Tex. R. App. P. 26.2(a)(1). Additionally, nothing in the record indicates that Ramirez properly mailed his notice of appeal to the trial court clerk within the deadline. See id. R. 26.2(a)(1); see also id. R. 9.2 (noting that document received within ten days of deadline will be considered timely if it was deposited in mail on or before last day for filing and listing ways in which date of mailing may be shown).
Moreover, although the Rules of Appellate Procedure allow for the deadline for filing a notice of appeal to be extended, an extension may only be granted "if, within 15 days after the deadline for filing the notice of appeal, the party" files a notice of appeal and a motion requesting an extension of the deadline. See id. R. 26.3. Ramirez did not request an extension of time for filing his notice of appeal within 15 days of the deadline. See id. Further, in criminal cases, unlike in civil cases, we cannot infer a motion for extension of time when a notice of appeal is filed within 15 days of the deadline. See Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996); Lair v. State, 321 S.W.3d 158, 159 (Tex. App.-Houston [1st Dist.] 2010, pet. ref'd); see also Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (explaining that for civil cases "a motion for extension of time is necessarily implied when an appellant acting in good faith" files notice of appeal "within the fifteen-day period in which the appellant would be entitled to move to extend the filing deadline").
In light of the preceding, we must conclude that Ramirez did not timely file his notice of appeal. Because the notice of appeal was not timely, we do not have jurisdiction over the appeal and must, therefore, dismiss it. See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (explaining that "[a] notice of appeal which complies with the requirements of Tex.R.App.P. 26 is essential to vest the court of appeals with jurisdiction" and that if appeal is not timely perfected, "a court of appeals does not obtain jurisdiction to address the merits of the appeal" and "can take no action other than to dismiss the appeal"); see also Castillo v. State, 369 S.W.3d 196, 202 (Tex. Crim. App. 2012) (noting that "one day is enough to deprive the appellate court of jurisdiction to consider appellant's appeal under the Texas Rules of Appellate Procedure").
The remedy for an untimely notice of appeal is to file an application for post-conviction writ of habeas corpus returnable to the Court of Criminal Appeals for consideration of an out-of-time appeal. See Tex. Code Crim. Proc. art. 11.072; Bell v. State, No. 03-24-00047-CR, 2024 WL 968884, at *1 n.1 (Tex. App.-Austin Mar. 7, 2024, no pet.) (mem. op., not designated for publication).
For these reasons, we dismiss Ramirez's appeal for want of jurisdiction.
Dismissed for Want of Jurisdiction