Ex Parte McDonald Okechukwu Osuagwu ( 2008 )

Dismissed and Memorandum Opinion filed November 6, 2008

Dismissed and Memorandum Opinion filed November 6, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-08-00961-CR

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EX PARTE MACDONALD OKECHUKWU OSUAGWU

On Appeal from the County Court at Law No. 1

Fort Bend County, Texas

Trial Court Cause No. 126673

M E M O R A N D U M   O P I N I O N

After a jury trial, appellant was convicted of possession of marijuana, a misdemeanor. On October 22, 2007, the court sentenced appellant to confinement in jail for 90 days.  No timely motion for new trial was filed.  Appellant=s notice of appeal was not filed until April 2, 2008.  Therefore, on May 15, 2008, this Court dismissed appellant=s appeal for want of jurisdiction because the notice of appeal was filed late.  See Osuagwu v. State, No. 14-08-00292-CR, (Tex. App.CHouston [14th Dist.] May 15, 2008, no pet.) (not designated for publication). 

Appellant filed an application for habeas corpus relief on July 23, 2008, asserting that he was illegally restrained at an Immigration and Customs Enforcement facility due to his conviction.  See Tex. Code Crim. Proc. Ann. art. 11.09 (Vernon 2005) (providing that post-convictions writs of habeas corpus in misdemeanor cases may be heard in county court).  On July 30, 2008, the trial court granted the writ and ordered appellant brought to court for a hearing on his requested relief.  The record before this court does not contain a signed order granting or denying appellant=s requested relief.  The trial court signed a new judgment commencing appellant=s sentence on August 21, 2008, however.  Appellant filed a new notice of appeal from this judgment on October 2, 2008.

Appeals from the denial of relief in misdemeanor post-conviction habeas corpus proceedings are properly directed to the intermediate courts of appeals.  See Ex parte Jordan, 659 S.W.2d 827, 828 (Tex. Crim. App. 1983).  Even if we construed the new judgment signed August 21, 2008, as an order denying appellant=s requested habeas relief, appellant=s notice of appeal is untimely to invoke our jurisdiction.

A defendant=s notice of appeal must be filed within thirty days after sentence is imposed when the defendant has not filed a motion for new trial, or within thirty days after the trial court enters an appealable order.  See Tex. R. App. P. 26.2(a)(1).  A notice of appeal that complies with the requirements of Rule 26 is essential to vest the court of appeals with jurisdiction.  Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998).  If an appeal is not timely perfected, a court of appeals does not obtain jurisdiction to address the merits of the appeal. Under those circumstances it can take no action other than to dismiss the appeal.  Id.

Appellant=s notice of appeal was filed more than thirty days after the trial court=s August 21, 2008, order. Accordingly, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed November 6, 2008.

Panel consists of Chief Justice Hedges and Justices Guzman and Brown.

Do Not Publish C Tex. R. App. P. 47.2(b).