JERRY ALVAREZ v. THE STATE OF TEXAS--Appeal from 319th District Court of Nueces County

NUMBER 13-07-602-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

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JERRY ALVAREZ, Appellant,

 
v.

THE STATE OF TEXAS, Appellee.

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On appeal from the 319th District Court
of Nueces County, Texas.

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MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Benavides

Memorandum Opinion Per Curiam

 

Appellant, Jerry Alvarez, 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 March 12, 2007, counsel filed a motion for new trial on April 12, 2007, and notice of appeal was filed on October 1, 2007. On October 4, 2007, 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. By response filed on October 31, 2007, counsel indicated that appellant had timely filed a pro se motion for new trial on April 2, 2007.

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). Where a timely motion for new trial has been filed, notice of appeal shall be filed within ninety days after the sentence is imposed or suspended in open court. Tex. R. App. P. 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 Tex. R. App. P. 26.3.

Appellant timely filed a pro se motion for new trial. Therefore, his notice of appeal was due to have been filed on or before June 11, 2007. See Tex. R. App. P. 26.2(a)(2). Appellant did not file a motion for extension of time to file his notice of appeal as permitted by Texas Rule of Appellate Procedure 26.3 and did not file his notice of appeal until October 1, 2007 .

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). 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). 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).

The appeal is DISMISSED FOR WANT OF JURISDICTION. PER CURIAM

Do not publish. See Tex. R. App. P. 47.2(b).

 

Memorandum Opinion delivered and filed

this the 8th day of November, 2007.