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Williams v. State

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG
Aug 31, 2017
NUMBER 13-17-00414-CR (Tex. App. Aug. 31, 2017)

Opinion

NUMBER 13-17-00414-CR

08-31-2017

DAVID E. WILLIAMS, Appellant, v. THE STATE OF TEXAS, Appellee.


On appeal from the 214th District Court of Nueces County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Contreras, and Benavides
Memorandum Opinion by Justice Benavides

Appellant David E. Williams, proceeding pro se, attempted to perfect an appeal from a conviction for possession of a controlled substance. See TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West, Westlaw through 2017 R.S.). The judgment against appellant was entered on May 23, 2017. Appellant did not file his notice of appeal until July 10, 2017. We dismiss the appeal for want of jurisdiction.

We note that the appellant's pro se notice of appeal contains a hand-written notation "received [sic] June 21, 2017 3:08 p.m. Filed-Anne Lorentzen." This document was stamped as filed by the district clerk on July 10, 2017, and that is the date of filing for the notice of appeal as reflected in the appellate record that was filed with this Court.

On July 21, 2017, the Clerk of this Court notified appellant that it appeared that the appeal was not timely perfected and 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. Appellant did not respond to the Court's notice.

"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); see Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996) ("A timely notice of appeal is necessary to invoke a court of appeals' jurisdiction."). In a criminal case, a defendant's notice of appeal is due within thirty days after sentence is imposed in open court or the trial court enters an appealable order. See TEX. R. APP. P. 26.2(a)(1). The deadline to file a notice of appeal is extended to ninety days after the sentence is imposed if the defendant timely files a motion for new trial. See id. R. 26.2(a)(2). The time for filing a notice of appeal may be further extended if, within fifteen days of the deadline for filing the notice of appeal, appellant files the notice of appeal and a motion complying with Rule 10.5(b). See id. R. 26.3.

Because appellant did not file a motion for new trial, his notice of appeal was due thirty days after May 23, 2017, or by June 22, 2017. Because his notice of appeal was not filed until July 10, 2017, the notice of appeal was untimely. See TEX. R. APP. P. 26.2. "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 199; see 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) (West, Westlaw through Ch. 49, 2017 R.S.); see also Ex parte Garcia, 988 S.W.2d 240 (Tex. Crim. App. 1999); Ater v. Eighth Ct. of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (orig. proceeding).

Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a), 43.2(f). We dismiss pending motions, if any, as moot. See id.

GINA M. BENAVIDES,

Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 31st day of August, 2017.


Summaries of

Williams v. State

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG
Aug 31, 2017
NUMBER 13-17-00414-CR (Tex. App. Aug. 31, 2017)
Case details for

Williams v. State

Case Details

Full title:DAVID E. WILLIAMS, Appellant, v. THE STATE OF TEXAS, Appellee.

Court:COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

Date published: Aug 31, 2017

Citations

NUMBER 13-17-00414-CR (Tex. App. Aug. 31, 2017)