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McCormick v. State

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG
Jan 21, 2016
NUMBER 13-15-00573-CR (Tex. App. Jan. 21, 2016)

Opinion

NUMBER 13-15-00573-CR

01-21-2016

ROBERT LEE MCCORMICK, Appellant, v. THE STATE OF TEXAS, Appellee.


On appeal from the 103rd District Court of Cameron County, Texas.

MEMORANDUM OPINION

Before Justices Garza, Perkes, and Longoria
Memorandum OpinionPer Curiam

Appellant, Robert Lee McCormick, attempted to perfect an appeal from a conviction for sexual assault. 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 November 22, 2013. Appellant filed his notice of appeal on December 3, 2015. On December 18, 2015, 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 has filed a response stating that there appears to be misunderstanding because this case is not yet ready to submit for an appeal and he needs to review appropriate documents in order to assert grounds for an appeal.

The trial court's certification of the defendant's right to appeal shows that this "is a plea bargain case and the defendant has NO right of appeal." See TEX. R. APP. P. 25.2(a)(2). On January 7, 2014, appellant filed a request to appeal and request for appellate counsel with the trial court which was denied on January 10, 2014. --------

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. 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. 26.3.

Appellant's notice of appeal, filed more than twenty-four 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 21st day of January, 2016.


Summaries of

McCormick v. State

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG
Jan 21, 2016
NUMBER 13-15-00573-CR (Tex. App. Jan. 21, 2016)
Case details for

McCormick v. State

Case Details

Full title:ROBERT LEE MCCORMICK, Appellant, v. THE STATE OF TEXAS, Appellee.

Court:COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

Date published: Jan 21, 2016

Citations

NUMBER 13-15-00573-CR (Tex. App. Jan. 21, 2016)