Herbert Hern v. The State of Texas Appeal from 41st District Court of El Paso County (memorandum opinion)

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COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS § No. 08-19-00228-CR HERBERT HERN, § Appellant, § v. § THE STATE OF TEXAS, § Appeal from the 41st District Court Appellee. of El Paso County, Texas (TC# 20120D04271) § MEMORANDUM OPINION Herbert Hern, pro se, is attempting to appeal the trial court’s decision not to grant him an out-of-time appeal. A timely notice of appeal is necessary to invoke this Court's jurisdiction. Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App. 1996). In a criminal case, a defendant’s notice of appeal is due within thirty days after the day sentence is imposed in open court, or ninety days after the sentence is imposed in open court if the defendant timely files a motion for new trial. See TEX.R.APP.P. 26.2(a)(1), (2). While a court of appeals may extend the time to file the notice of appeal, both the notice of appeal and the extension motion must be filed within fifteen days after the deadline for filing the notice of appeal. See TEX.R.APP.P. 26.3. In the absence of a timely filed notice of appeal, a court of appeals does not have 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. See Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998). In this instance, Hern did not attach a copy of the order he sought to challenge on appeal. However, he did identify his conviction as occurring on March 20, 2014. The docketing statement from the District Clerk states he was convicted on one count of aggravated sexual assault of a child, a felony and Appellant was sentence in open court on March 6, 2014. As Hern recognizes, this Court does not have jurisdiction to entertain a direct appeal from his conviction at this point in time. As for his request for an out-of-time appeal, only the Court of Criminal Appeals has jurisdiction to grant Appellant an out-of-time appeal of his felony convictions. See Ater v. Eighth Court of Appeals, 802 S.W.2d 241 (Tex.Crim.App. 1991) (explaining that writ of habeas corpus pursuant to Article 11.07 of the Texas Code of Criminal Procedure governs out-of-time appeals from felony convictions). Accordingly, we dismiss this appeal for lack of jurisdiction. All outstanding motions are denied as moot. September 27, 2019 YVONNE T. RODRIGUEZ, Justice Before Rodriguez, J., Palafox, J., and Barajas, Senior Judge Barajas, Senior Judge (Sitting by Assignment) (Do Not Publish) 2