Roshaun Nicholas Smith v. The State of Texas Appeal from 292nd Judicial District Court of Dallas County (memorandum opinion by chief justice wright)

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Dismissed and Opinion Filed January 7, 2016 S In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-01569-CR ROSHAUN NICHOLAS SMITH, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 292nd Judicial District Court Dallas County, Texas Trial Court Cause No. F09-51111-V MEMORANDUM OPINION Before Chief Justice Wright and Justices Myers and Brown Opinion by Chief Justice Wright Roshaun Nicholas Smith was convicted of murder. Punishment was assessed at fortyfive years’ imprisonment and a $10,000 fine, and was imposed in open court on August 6, 2010. The trial court’s judgment was affirmed on direct appeal. Smith v. State, No. 05-10-01555-CR, 2012 WL 975730 (Tex. App.––Dallas Mar. 23, 2012, pet. ref’d) (not designated for publication). The Court now has before it appellant’s December 18, 2015 “notice of appeal,” in which appellant seeks an out-of-time appeal. We dismiss the appeal for want of jurisdiction. “Jurisdiction concerns the power of a court to hear and determine a case.” Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). The jurisdiction of an appellate court must be legally invoked, and, if not, the power of the court to act is as absent as if it did not exist. See id. at 523. “The standard to determine whether an appellate court has jurisdiction to hear and determine a case ‘is not whether the appeal is precluded by law, but whether the appeal is authorized by law.’” Blanton v. State, 369 S.W.3d 894, 902 (Tex. Crim. App. 2012) (quoting Abbott v. State, 271 S.W.3d 694, 696–97 (Tex. Crim. App. 2008)). The right to appeal in a criminal case is a statutorily created right. See McKinney v. State, 207 S.W.3d 366, 374 (Tex. Crim. App. 2006); Griffin v. State, 145 S.W.3d 645, 646 (Tex. Crim. App. 2004). See also TEX. CODE CRIM. P. ANN. art. 44.02 (West 2006) (providing right of appeal for defendant); TEX. R. APP. P. 25.2(a)(2) (rules for appeal by defendant). To invoke this Court’s jurisdiction, a timely notice of appeal must be filed. See TEX. R. APP. P. 26.2(a); Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (per curiam). Appellant’s December 18, 2015 notice of appeal is untimely as to the August 6, 2010 sentencing date. Appellant does not state that any further appealable orders have been entered by the trial court. Rather, he is seeking an out-of-time appeal or petition for discretionary review. This Court has no authority to grant appellant either an out-of-time appeal or petition for discretionary review. Accordingly, we dismiss the appeal for want of jurisdiction. Do Not Publish TEX. R. APP. P. 47 151569F.U05 /Carolyn Wright/ CAROLYN WRIGHT CHIEF JUSTICE –2– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT ROSHAUN NICHOLAS SMITH, Appellant No. 05-15-01569-CR On Appeal from the 292nd Judicial District Court, Dallas County, Texas Trial Court Cause No. F09-51111-V. Opinion delivered by Chief Justice Wright, Justices Myers and Brown participating. V. THE STATE OF TEXAS, Appellee Based on the Court’s opinion of this date, we DISMISS the appeal for want of jurisdiction. Judgment entered January 7, 2016. –3–

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