Alberto Rodriguez AKA Albert Rodriguez v. State

NUMBER 13-14-00542-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

ALBERTO RODRIGUEZ

AKA ALBERT RODRIGUEZ, Appellant, v.

THE STATE OF TEXAS, Appellee. ____________________________________________________________

On appeal from the 105th District Court of Nueces County, Texas. ____________________________________________________________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Longoria Memorandum Opinion Per Curiam

Appellant, Alberto Rodriguez aka Albert Rodriguez, attempted to perfect an appeal from a conviction for driving while intoxicated. We dismiss the appeal for want of jurisdiction.

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 have jurisdiction to address the merits of the appeal 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).

The trial court imposed sentence in this matter on February 4, 2013. Appellant filed a pro se notice of appeal (motion for out of time appeal) on September 23, 2013. On September 22, 2014, the Clerk of this Court notified appellant that it appeared that the appeal was not timely perfected and 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 appointed counsel has responded that appellant has not timely filed a notice of appeal.

Unless a motion for new trial has been timely filed, a notice of appeal must be filed within thirty days after the day sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order. TEX. R. APP. P. 26.2(a)(1). Where a timely motion for new trial has been filed, the notice of appeal must be filed within ninety days after the day sentence is imposed or suspended in open court. See id. r. 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 id. r. 26.3.

Appellant’s notice of appeal, filed more than seven months 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.

PER CURIAM

Do not publish.

See TEX. R. APP. P. 47.2(b).

Delivered and filed the

16th day of October, 2014.