Opinion
NUMBER 13-18-00230-CR
05-17-2018
DAVID REA, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court of Victoria County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, and Hinojosa
Memorandum Opinion by Justice Contreras
Appellant David Rea, proceeding pro se, filed a notice of appeal, a motion to vacate plea, and a motion to modify sentence, accompanied by associated briefing, on April 26, 2018. This matter arises from trial court cause number 13-8-27445-A in the 24th District Court of Victoria County, Texas. Appellant seeks to set aside his conviction for manufacture or delivery of a controlled substance. See TEX. PENAL CODE ANN. § 12.42(c)(1) (West, Westlaw through 2017 1st C.S.); TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (d) (West, Westlaw through 2017 1st C.S.). We dismiss the appeal for want of jurisdiction.
The trial court imposed sentence in this case on August 5, 2014. See TEX. R. APP. P. 26.2. On April 26, 2018, the Court of this Court notified appellant that it appeared that his notice of appeal had not been timely perfected and advised appellant 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. In response, appellant has filed a "P.D.R." and "Brief for Appellant." Appellant asserts that he believes that his issues on appeal are valid and suggests that this Court has jurisdiction to review these issues on appeal.
Texas Rule of Appellate Procedure 26.2 provides that an appeal is perfected in a criminal case when the 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). Where a timely motion for new trial has been filed, the notice of appeal shall be filed within ninety days after the sentence is imposed or suspended in open court. See id. R. 26.2(a)(2). 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. R. 26.3.
The timely filing of a written notice of appeal is a jurisdictional prerequisite to hearing an appeal. Castillo v. State, 369 S.W.3d 196, 198 (Tex. Crim. App. 2012); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); Kessinger v. State, 26 S.W.3d 725, 726 (Tex. App.—Fort Worth 2000, pet. ref'd). If a notice of appeal is not timely filed, the court of appeals has no option but to dismiss the appeal for lack of jurisdiction. Castillo, 369 S.W.3d at 198; Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998); Dewalt v. State, 417 S.W.3d 678, 690 (Tex. App.—Austin 2013, pet. denied). In such circumstances, an 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) (West, Westlaw through 2017 1st C.S.); see also Ex parte Garcia, 988 S.W.2d 240 (Tex. Crim. App. 1999).
Here, appellant's notice of appeal was filed more than three years after the deadline imposed by the appellate rules. See TEX. R. APP. P. 26.2(a)(1). Accordingly, we have no jurisdiction over the appeal. See Castillo, 369 S.W.3d at 198. We dismiss this appeal and all pending motions for want of jurisdiction.
DORI CONTRERAS
JUSTICE Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 17th day of May, 2018.