Carlos Javier Hernandez v. State ( 2019 )

Dismissed; Opinion Filed October 28, 2019
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01265-CR
CARLOS JAVIER HERNANDEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause No. F17-48267-J
MEMORANDUM OPINION
Before Justices Myers, Osborne, and Nowell
Opinion by Justice Myers
On July 31, 2018, Carlos Javier Hernandez was sentenced to fifty years in prison for
continuous sexual abuse of a young child. On October 17, 2019, appellant filed a notice of appeal
in this Court along with a motion for an out of time appeal.
A timely filed notice of appeal is required to invoke this Court’s jurisdiction. Castillo v.
State, 369 S.W.3d 196, 198 (Tex. Crim. App. 2012). In the absence of a timely filed notice of
appeal, the Court has no option other than to dismiss the appeal. Id. A defendant perfects an appeal
by filing with the trial court clerk, within thirty days after the date sentence was imposed, or within
ninety days after sentencing if the defendant timely filed a motion for new trial, a written notice of
appeal showing his desire to appeal. See TEX. R. APP. P. 25.2(b), (c), 26.2(a).
When a criminal defendant misses the deadline to file a notice of appeal following
conviction, intermediate appellate courts may obtain jurisdiction only if the Texas Court of
Criminal Appeals grants the defendant the ability to pursue an out-of-time appeal. See Ater v.
Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (orig. proceeding); Ex
parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997) (explaining that granting an out-of-
time appeal “restores the pendency of the direct appeal”). To be entitled to an out-of-time appeal,
the defendant must file an application for a writ of habeas corpus with the clerk of the convicting
court. In re Escareno, 297 S.W.3d 288, 289 (Tex. Crim. App. 2009); see TEX. CODE CRIM. PROC.
ANN. art. 11.07, §§ 1, 3, 5. The application is then transmitted to the Texas Court of Criminal
Appeals, which has sole jurisdiction to grant the relief of an out-of-time appeal. See TEX. CODE
CRIM. PROC. ANN. art. 11.07, §§ 1, 3, 5; Ater, 802 S.W.2d at 243 (“We are the only court with
jurisdiction in final post-conviction felony proceedings.”).
Here, appellant’s notice of appeal was untimely, leaving us no other option than to dismiss
the appeal. To the extent appellant seeks an out of time appeal, he raises his complaint in the
improper forum. See TEX. CODE CRIM. PROC. ANN. art. 11.07; In re McAfee, 53 S.W.3d 715, 717
(Tex. App.—Houston [1st Dist.] 2001, orig. proceeding) (“Article 11.07 contains no role for the
courts of appeals; the only courts referred to are the convicting court and the Court of Criminal
Appeals.”).
We dismiss the appeal.
/Lana Myers/
LANA MYERS
Do Not Publish JUSTICE
TEX. R. APP. P. 47.2(b)
191265F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CARLOS JAVIER HERNANDEZ, On Appeal from the Criminal District Court
Appellant No. 3, Dallas County, Texas
Trial Court Cause No. F17-48267-J.
No. 05-19-01265-CR V. Opinion delivered by Justice Myers,
Justices Osborne and Nowell participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, we DISMISS this appeal.
Judgment entered this 28th day of October, 2019.
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