Armando Cortez v. State ( 2019 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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ARMANDO CORTEZ, No. 08-18-00210-CR
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Appellant, Appeal from
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v. 41st District Court
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THE STATE OF TEXAS, of El Paso County, Texas
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Appellee. (TC # 20130D03825)
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MEMORANDUM OPINION
Appellant, Armando Cortez, is attempting to appeal his conviction of family violence
assault. We dismiss the appeal for lack of jurisdiction.
The court reporter filed a letter advising the Court that she could not file the reporter’s
record because Appellant absconded shortly after the trial began. In determining whether we have
jurisdiction of this appeal, we have taken judicial notice of the records for cause number
20130D03825 which are available online. See TEX.R.EVID. 201(b), (c). The trial court issued a
warrant for Appellant, but the official records of the trial court reflect that the warrant remains
unserved. While the trial proceeded in Appellant’s absence and the jury found him guilty and
assessed his punishment in absentia, his sentence could not be pronounced in open court.
Appellant’s attorney filed notice of appeal. Upon receiving the court reporter’s letter, the Clerk of
the Court sent the parties a letter raising an issue regarding the Court’s jurisdiction of the appeal
and giving Appellant an opportunity to file a response. Appellant has not responded to our inquiry.
In a criminal case, the appellate timetable does not begin to run until thirty days after the
day sentenced is imposed in open court or within ninety days if the defendant timely files a motion
for new trial. See TEX.R.APP.P. 26.2(a). As already noted, the trial court has not yet imposed
Appellant’s sentence in open court. The notice of appeal filed by counsel on Appellant’s behalf is
premature and it will be effective and deemed filed on the same day sentence is imposed or
suspended in open court. See TEX.R.APP.P. 27.1. While we have in some cases allowed an appeal
to remain pending when a notice of appeal is prematurely filed in order to allow the parties and
the trial court to take those steps necessary for the judgment to become final and appealable, there
is nothing to indicate that Appellant will be taken into custody or that his sentence will be
pronounced in open court within a reasonable period of time. Accordingly, we dismiss the appeal
for lack of jurisdiction.
January 23, 2019
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rodriguez, and Palafox, JJ.
(Do Not Publish)