Ex Parte Richard Lawrence Nugent ( 2017 )

Opinion issued January 12, 2017
In The
Court of Appeals
For The
First District of Texas
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NO. 01-16-00903-CR
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EX PARTE RICHARD LAWRENCE NUGENT, Appellant
On Appeal from the 228th District Court
Harris County, Texas
Trial Court Case No. 1015171A
MEMORANDUM OPINION
Appellant, Richard Lawrence Nugent, has filed a “Motion for Out of Time
Appeal” regarding his untimely notice of appeal from the trial court’s denial of his
article 11.072 application for a writ of habeas corpus. We deny the motion and
dismiss the appeal.
Background
On April 11, 2005, Nugent pleaded guilty to the first-degree felony offense of
aggregate theft in an amount in excess of $200,000.00 without an agreed
recommendation as to punishment. See TEX. PENAL CODE ANN. §§ 31.03 (West
Supp. 2016); 31.09 (West 2011). On June 24, 2005, the trial court sentenced Nugent
to ten years’ confinement but suspended the sentence and placed him on ten years’
community supervision. The court further ordered that Nugent pay $248,621.00 and
relinquish any interest in certain real property as restitution.
On April 8, 2015, through new counsel, Nugent filed an application for writ
of habeas corpus pursuant to Article 11.072 of the Texas Code of Criminal Procedure
claiming ineffective assistance of counsel, involuntariness of his plea, and newly
discovered evidence establishing innocence. At the conclusion of the May 31, 2016
hearing on the application, the trial court denied the application in open court. The
trial court subsequently issued signed findings of fact and conclusions of law on July
25, 2016.
On November 2, 2016, Nugent’s counsel filed a notice of appeal from the
denial of his habeas application. Included with the notice of appeal was an undated
affidavit of Edwin Dee McWilliams, one of the attorneys who represented Nugent
in his habeas application. McWilliams stated in his affidavit that a notice of appeal
had not been filed because (1) he mistakenly thought that the notice of appeal was
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due thirty days after the findings of fact and conclusions of law were entered rather
than thirty days after the court ruled on May 31, 2016 and (2) he was unaware that
the trial court signed the findings of fact and conclusions of law on July 25, 2016.
The affidavit concluded by stating that “It has always been Mr. Nugent’s intent to
challenge his conviction and appeal any adverse decision in this case to the furthest
extent. Due to a mistaken view of the law, and lack of notice, a notice of appeal has
not been filed in this case.” On November 18, 2016, Nugent’s counsel filed a
“Motion for Out of Time Appeal” similarly relying upon McWilliams’s affidavit.
Discussion
In a criminal case, a defendant’s notice of appeal is due within thirty days after
sentence is imposed in open court or the trial court enters an appealable order. See
TEX. R. APP. P. 26.2(a)(1). The deadline to file a notice of appeal is extended to
ninety days after the sentence is imposed if the defendant timely files a motion for
new trial. See TEX. R. APP. P. 26.2(a)(2). The time for filing a notice of appeal may
be further extended if, within fifteen days of deadline for filing the notice of appeal,
appellant files the notice of appeal and a motion complying with Rule 10.5(b). See
TEX. R. APP. P. 26.3.
An order denying habeas corpus relief under article 11.072 that does not
impose or suspend a sentence is an appealable order. See TEX. CODE CRIM. P. ANN.
art. 11.072, § 8 (West 2015). Therefore, a notice of appeal from such an order must
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be filed within the thirty-day time period specified in rule 26.2(a)(1). See TEX. R.
APP. 26.2(a)(1); Ex Parte Chavez, No. 13–16–00331–CR, 2016 WL 4040252, at *1
(Tex. App.—Corpus Christ–Edinburg, July 28, 2016, no pet.) (mem. op., not
designated for publication); Ex parte Delgado, 214 S.W.3d 56, 58 (Tex. App.—El
Paso 2006, pet. ref’d); see also Fowler v. State, No. 01–12–00300–CR, 2013 WL
653276, at *1 (Tex. App.—Houston [1st Dist.] Feb. 21, 2013, no pet.) (mem. op.,
not designated for publication); Mireles v. State, No. 02–14–00228–CR, 2014 WL
6601964, at *1 (Tex. App.—Fort Worth Nov. 20, 2014, no pet.) (mem. op., not
designated for publication).
Nugent’s counsel asserts that the thirty-day deadline for filing a notice of
appeal began to run when the trial court denied the habeas application in open court
on May 31, 2016. Although the trial court denied the habeas application in open
court on May 31, 2016, we note that its written order containing findings of fact and
conclusions of law was not issued until July 25, 2016. See TEX. CODE CRIM. PROC.
ANN. art. 11.072 § 7(A) (“the court shall enter a written order including findings of
fact and conclusions of law.”); Ex Parte Martinez, No. PD–1801–10, 2011 WL
2582199, at *1 (Tex. Crim. App. June 29, 2011) (“For the purposes of the appellate
timetable, a trial court ‘enters’ an order when it signs the order.”) (not designated for
publication).
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Assuming that the deadline to file a notice of appeal did not run until the later
date in which the trial court issued its written order, Nugent’s notice of appeal was
due by no later than August 24, 2016 (thirty days from July 25, 2016). A motion to
extend the deadline was not filed in this case. Accordingly, Nugent’s November 2,
2016 notice of appeal, filed one hundred days after the trial court issued its written
order on July 25, 2016, was untimely. See TEX. R. APP. P. 26.2.
If an appeal is not timely perfected, a court of appeals does not obtain
jurisdiction to address the merits of the appeal and can take no action other than to
dismiss the appeal. See Castillo v. State, 369 S.W.3d 196, 198 (Tex. Crim. App.
2012); Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998); Olivo v. State,
918 S.W.2d 519, 523 (Tex. Crim. App. 1996). Nugent acknowledges that his notice
of appeal was untimely and requests that we grant an “out of time appeal.” But this
Court has no authority to allow the late filing of a notice of appeal except as provided
by Rule 26.3. See Olivo, 918 S.W.2d at 522.
Moreover, Nugent’s counsel requests an out of time appeal on the basis that
they were unaware of the trial court’s July 25, 2016 written order. Although Texas
Rule of Appellate Procedure 4.2 and Texas Rule of Civil Procedure 306a(4) allow
for additional time to file a notice of appeal when a party does not receive timely
notice of a judgment in a civil case, there is no comparable rule extending the time
in criminal cases. See Carrillo v. State, No. 01–11–00495–CR, 2011 WL 4507218,
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at *1 (Tex. App.—Houston [1st Dist.] Sept. 29, 2011) (“Rule 4.2 of the Texas Rules
of Appellate Procedure allows for additional time to file a notice of appeal when a
party does not receive timely notice of a judgment in a civil case, but there is no
comparable rule for criminal cases.”) (mem. op., not designated for publication);
Dewalt v. State, 417 S.W.3d 678, 689–90 (Tex. App.—Austin 2013, pet. ref’d)
(“Although [no notice of the appealable order] might excuse an untimely notice of
appeal in a civil case, ‘[n]o comparable rule exists for criminal cases,’ and Texas
courts have routinely held, as we must do here, that being unaware of an appealable
order or judgment does not excuse an untimely notice of appeal.”); Pope v. State,
No. 05–10–01455–CR, 2011 WL 924477, at *2 (Tex. App.—Dallas Mar. 18, 2011,
no pet.) (same) (mem. op., not designated for publication).
Conclusion
Accordingly, we deny the motion for an out of time appeal and dismiss this
appeal for want of jurisdiction. See TEX. R. APP. P. 43.2(f). Any other pending
motions are dismissed as moot.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Jennings and Bland.
Do not publish. TEX. R. APP. P. 47.2(b).
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