In the Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-23-00178-CR

DAVID JOSE SOMOZA, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 6th District Court Lamar County, Texas Trial Court No. 29481

Before Stevens, C.J., van Cleef and Rambin, JJ.

Memorandum Opinion by Justice Rambin MEMORANDUM OPINION David Jose Somoza filed an untimely notice of appeal from his conviction of driving while intoxicated, third or more,1 for which he was sentenced to seventeen years’ incarceration.

We dismiss the appeal for want of jurisdiction.

The trial court imposed sentence in this matter on June 28, 2023, and Somoza did not file a motion for new trial. As a result, Somoza’s notice of appeal was due on or before July 28, 2023. See TEX. R. APP. P. 26.2(a)(1). Somoza’s notice of appeal was not filed until, at the earliest, August 27, 2023, well past the deadline for filing such notice. Consequently, Somoza’s attempt to appeal his judgment of conviction in this matter was untimely. The Texas Court of Criminal Appeals has expressly held that, without a timely filed notice of appeal, we cannot exercise jurisdiction over an appeal. See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); see also Slaton v. State, 981 S.W.2d 208, 209 n.3 (Tex. Crim. App. 1998) (per curiam).

By letter dated September 5, 2023, we notified Somoza that his notice of appeal appeared to be untimely and that the appeal was subject to dismissal for want of jurisdiction. We gave Somoza twenty days to respond to our letter and to demonstrate how we had jurisdiction over the appeal notwithstanding the noted defect. Somoza responded to our letter explaining that his trial counsel failed to file a notice of appeal on his behalf after counsel advised Somoza that he had done so. We are unable to remedy this problem given the current posture of this case.

See TEX. PENAL CODE ANN. § 49.09(b) (Supp.). Somoza pled true to one enhancement paragraph, resulting in an enhanced sentence. See TEX. PENAL CODE ANN. § 12.42.

Because Somoza did not timely file his notice of appeal, we dismiss the appeal for want of jurisdiction.

Jeff Rambin Justice Date Submitted: October 5, 2023 Date Decided: October 6, 2023 Do Not Publish