JESUS GUERRA v. THE STATE OF TEXAS--Appeal from 117th District Court of Nueces County

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NUMBER 13-10-00045-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ____________________________________________________________ JESUS GUERRA, Appellant, v. THE STATE OF TEXAS, Appellee. ____________________________________________________________ On appeal from the 117th District Court of Nueces County, Texas. ____________________________________________________________ MEMORANDUM OPINION Before Chief Justice Valdez and Justices YaÃ±ez and Garza Memorandum Opinion Per Curiam Appellant, Jesus Guerra, attempted to perfect an appeal from a conviction for burglary of a habitation. We dismiss the appeal for want of jurisdiction. Sentence in this matter was imposed on October 5, 2009 and no motion for new trial was filed. Notice of appeal was filed on November 19, 2009. On August 4, 2010, 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. Appellant s counsel responded by filing a motion for leave to file the notice of appeal stating that appellant is not an attorney and filed his notice of appeal pro se without the benefit of counsel. 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. Although the notice of appeal herein was filed within the 15-day time period for filing a motion for extension of time to file notice of appeal, no such motion for extension of time was filed within the 15-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). AWhen 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). 2 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). Appellant s motion for leave to file the notice of appeal is hereby DENIED and the appeal is DISMISSED FOR WANT OF JURISDICTION. PER CURIAM Do not publish. TEX. R. APP. P. 47.2(b). Delivered and filed the 31st day of August, 2010. 3

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