Ernest W. Taylor v. State ( 2010 )

Opinion issued September 30, 2010

In The

Court of Appeals

For The

First District of Texas

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No.  01-10-00502-CR

        01-10-00503-CR

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ERNEST WILLIAM TAYLOR, Appellant

V.

The State of Texas, Appellee

On Appeal from the 228th District Court

Harris County, Texas

Trial Court Case No. 989866 and 1019588

MEMORANDUM OPINION

          We lack jurisdiction to hear these appeals.  The trial court sentenced appellant, Ernest William Taylor, and signed the final judgments in these cases on July 29, 2005.  Appellant did not file a motion for new trial.  The deadline for filing a notice of appeal was Monday, August 29, 2005, 31 days after sentencing.  See Tex. R. App. P. 26.2 (requiring notice of appeal to be filed within 30 days after day sentence is imposed or suspended absent motion for new trial); Tex. R. App. P. 4.1 (if due date falls on Saturday, Sunday, or legal holiday, period for filing extends to next day that is not Saturday, Sunday or legal holiday). 

          In general, without timely notice of appeal, the Court of Appeals lacks jurisdiction to address the merits of the issued appealed.  Slaton v. State, 981 S.W.2d 208, 209-10 (Tex. Crim. App. 1998); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); Douglas v. State, 987 S.W.2d 605, 605-06 (Tex. App.—Houston [1st Dist.] 1999, no pet.).  However, the Court of Appeals may nevertheless obtain such jurisdiction where a motion to make an out-of-time appeal is properly granted. See Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997) (“granting an out-of-time appeal restores the pendency of the direct appeal”).

          Appellant previously appealed to this Court regarding his sentences in these cause numbers, and a memorandum opinion dismissing cause numbers 01-05-01044-CR and 01-05-01045-CR was issued December 1, 2005. The current notices of appeal concern the trial court’s “denial of [appellant’s] motion for out of time appeal to the appeals court.”

          A motion requesting the right to make an out-of-time appeal may be granted as part of an application for a writ of habeas corpus.  See Ex parte Garcia, 988 S.W.2d 240, 240-41 (Tex. Crim. App. 1999).  While an application for a writ of habeas corpus must be filed with the convicting trial court, which may make certain findings, the Court of Criminal Appeals is not bound by those findings for it alone has jurisdiction to grant habeas corpus relief to a defendant convicted of a felony imposing a penalty other than death.  See Tex. Code. Crim. Proc. art. 11.07 §§ 3-5 (Vernon 2005); Torres, 943 S.W.2d at 476 (Tex. Crim. App. 1997); Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (Court of Criminal Appeals has exclusive authority to grant post conviction relief).  Accordingly, we lack jurisdiction to review the trial court’s preliminary denial of appellant’s motion for out of time appeal. See Guerra v. State, No. 13-10-00045-CR, 2010 WL 3417851, at *1 (Tex. App.—Corpus Christi Aug. 31, 2010, no. pet. h.) (mem. op., not designated for publication); Hiatt v. State, No. 04-08-00685-CR, 2008 WL 4500236, at *1 (Tex. App.—San Antonio 2008, no. pet.) (mem. op, not designated for publication).

          We therefore dismiss the appeals for lack of jurisdiction.

          All pending motions are denied as moot.

          It is so ORDERED.

PER CURIAM

Panel consists of Justices Jennings, Alcala, and Sharp.

Do not publish.  Tex. R. App. P. 47.2(b).