MIGUEL HINOJOSA v. THE STATE OF TEXAS--Appeal from 357th District Court of Cameron County
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NUMBER 13-11-00386-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ____________________________________________________________ MIGUEL HINOJOSA, APPELLANT, v. THE STATE OF TEXAS, APPELLEE. ____________________________________________________________ On appeal from the 357th District Court of Cameron County, Texas. ____________________________________________________________ MEMORANDUM OPINION Before Chief Justice Valdez and Justices Rodriguez and Garza Memorandum Opinion Per Curiam Appellant, Miguel Hinojosa, attempted to perfect an appeal from a conviction for illegal investment/enhancement. We dismiss the appeal for want of jurisdiction. Sentence in this matter was imposed on January 9, 1995. A motion for new trial was filed on May 5, 2011, and was denied by the trial court on May 23, 2011. On June 3, 2011, appellant filed a notice of appeal from the denial of the motion for new trial. On July 20, 2010, the Clerk of this Court notified appellant that it did not appear that the order from which the appeal is taken is an appealable order. 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 has not filed a response to the Court=s notice. Generally, a state appellate court only has jurisdiction to consider an appeal by a criminal defendant where there has been a final judgment of conviction. Workman v. State, 170 Tex. Crim. 621, 343 S.W.2d 446, 447 (1961); McKown v. State, 915 S.W.2d 160, 161 (Tex. App. Fort Worth 1996, no pet.). Exceptions to the general rule include: (1) certain appeals while on deferred adjudication community supervision, Kirk v. State, 942 S.W.2d 624, 625 (Tex. Crim. App. 1997); (2) appeals from the denial of a motion to reduce bond, TEX. R. APP. P. 31.1; McKown, 915 S.W.2d at 161; and (3) certain appeals from the denial of habeas corpus relief, Wright v. State, 969 S.W.2d 588, 589 (Tex. App.--Dallas 1998, no pet.); McKown, 915 S.W.2d at 161. 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). 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 2 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=s notice of appeal, filed more than sixteen years after sentence was imposed, was untimely, and accordingly, we lack jurisdiction over the appeal. See Slaton, 981 S.W.2d at 210. 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. Any pending motions are dismissed as moot. PER CURIAM Do not publish. See TEX. R. APP. P. 47.2(b). Delivered and filed the 26th day of August, 2011. 3
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