Esequiel Garcia, Jr. v. State ( 2006 )

NO. 07-06-0375-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
NOVEMBER 8, 2006
______________________________
ESEQUIEL GARCIA, JR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2004-404,974; HONORABLE CECIL PURYEAR, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant Esequiel Garcia, Jr., acting pro se, seeks to appeal an order entered in
trial court cause number 2004-404,974 in the 137th District Court of Lubbock County. The
record from the trial court demonstrates cause number 2004-404,974 was dismissed on
April 7, 2005, when appellant was re-indicted under cause number 2005-408,683.1 This
opinion addresses the appeal from trial court cause number 2004-404,974.
1
The case proceeded in the trial court under cause number 2005-408,683 and
appellant was convicted of Retaliation. That conviction is the subject of a separate appeal
in cause number 07-06-00417-CR.
Appellant filed his notice of appeal with the trial court on September 20, 2006. His
notice of appeal does not specify the action of the trial court from which he appeals. From
the record before us, however, it appears that any appealable order in the cause would of
necessity have been rendered on or before April 7, 2005, when the cause was dismissed.
Appellant’s notice of appeal thus was due no later than May 9, 2005.2 TEX . R. APP . P.
26.2. Thus, appellant’s notice of appeal was filed over a year after the last possible due
date and is untimely. If an appeal is not timely perfected, a court of appeals has no
jurisdiction to address the merits of the appeal and can take no action other than to dismiss
the appeal. Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998). Appellant’s
failure to timely file a notice of appeal prevents this court from having jurisdiction over the
appeal. Id. Accordingly, the appeal is dismissed for want of jurisdiction. Olivo v. State,
918 S.W.2d 519, 523 (Tex.Crim.App. 1996); TEX . R. APP . P. 43.2(f).
James T. Campbell
Justice
Do not publish.
2
No post-trial motion appears from the record before us. Even if such a motion had
been filed, extending the time to perfect appeal, appellant’s notice of appeal still would be
untimely. TEX . R. APP. P. 26.2(a).
2