Summary
dismissing Barahona's first appeal from the habeas court's ruling on Barahona's first petition seeking habeas relief in the same case he challenged in the first habeas proceeding, which he filed in July 2018
Summary of this case from Ex parte BarahonaOpinion
NO. 09-18-00328-CR
10-31-2018
EX PARTE ADELIO ALEXANDER BARAHONA
On Appeal from the County Court at Law No. 5 Montgomery County, Texas
Trial Cause No. 18-30764
MEMORANDUM OPINION
On July 3, 2018, the trial court signed an order denying Adelio Alexander Barahona's application for a writ of habeas corpus. See generally Tex. Code Crim. Proc. Ann. art.11.09 (West 2015). On August 20, 2018, Barahona filed a notice of appeal complaining about the trial court's July 2018 ruling denying his application. Subsequently, the State of Texas filed a motion to dismiss the appeal because Barahona did not file his notice of appeal within the time permitted to perfect an appeal.
In a criminal case, the notice of appeal must be filed within thirty days after the day the trial court signs an appealable order. See Tex. R. App. P. 26.2(a)(1). Assuming that the trial court's July 2018 order was a ruling on the merits of his petition for habeas relief, his notice of appeal was due August 2, 2018. See id. His time for filing a motion for extension of time to perfect his appeal expired August 17, 2018. See Tex. R. App. P. 26.3. Barahona filed his notice of appeal on August 20, 2018, three days after the period in which he could have sought an extension for filing his notice. If an appeal is not timely perfected, we may only dismiss the appeal. See Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996). Accordingly, we grant the State's motion, and we dismiss the appeal.
The notice of appeal is due ninety days after the day sentence is imposed in open court if the defendant timely files a motion for new trial. See Tex. R. App. P. 26.2(a)(2). This provision does not apply to Barahona's case because his sentence was not imposed during the proceeding on his application seeking a writ of habeas corpus. See Rodarte v. State, 860 S.W.2d 108, 109 (Tex. Crim. App. 1993).
We dismiss the appeal because the only order that Barahona challenged in his appeal was signed more than thirty days before he filed his notice of appeal. See Tex. R. App. P. 26.2(a)(1). We expressly decline to consider whether the trial court ruled on the merits of the habeas application in its July 2018 order. See Ex parte Hargett, 819 S.W.2d 866, 868 (Tex. Crim. App. 1991) (an order denying a habeas application on its merits is appealable).
APPEAL DISMISSED.
/s/_________
HOLLIS HORTON
Justice Submitted on October 30, 2018
Opinion Delivered October 31, 2018
Do Not Publish Before McKeithen, C.J., Kreger and Horton, JJ.