Kerwin B. Bryant v. the State of Texas ( 2022 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-22-00542-CR
Kerwin Bernard BRYANT,
Appellant
v.
The STATE of Texas,
Appellee
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2019CR12429
Honorable Raymond Angelini, Judge Presiding
PER CURIAM
Sitting: Luz Elena D. Chapa, Justice
Irene Rios, Justice
Beth Watkins, Justice
Delivered and Filed: November 30, 2022
DISMISSED FOR LACK OF JURISDICTION
On July 28, 2022, appellant Kerwin Bernard Bryant filed a notice of appeal challenging
the trial court’s ruling on his motion to suppress. The clerk’s record shows the trial court imposed
sentence on April 19, 2022, and Bryant did not file a motion for new trial extending the appellate
deadlines. Accordingly, the notice of appeal was due by May 19, 2022 or a notice and motion for
extension of time to file a notice of appeal was due in this court fifteen days later. See TEX. R.
APP. P. 26.2(a)(1), 26.3.
04-22-00542-CR
A timely notice of appeal is necessary to invoke a court of appeals’ jurisdiction. See Taylor
v. State, 424 S.W.3d 39, 43 (Tex. Crim. App. 2014); Olivo v. State, 918 S.W.2d 519, 522 (Tex.
Crim. App. 1996). Absent a timely motion for new trial extending the appellate deadlines, a
defendant’s notice of appeal is due within thirty days after (1) the day sentence is imposed or
suspended in open court, or (2) the day the trial court enters an appealable order. See TEX. R. APP.
P. 26.2; Olivo, 918 S.W.2d at 522. A late notice of appeal may be considered timely filed so as to
invoke a court of appeals’ jurisdiction if: (1) it is filed within fifteen days of the last day for filing,
(2) a motion for extension of time is filed in the court of appeals within fifteen days of the last day
allowed for filing the notice of appeal, and (3) the court of appeals grants the motion for extension
of time. See Olivo, 918 S.W.2d at 522.
Because Bryant did not file his notice of appeal until July 28, 2022, and he did not timely
file a motion for extension of time to file a notice of appeal in this court, his notice of appeal was
late. As a result, we ordered Bryant to show cause in writing why this appeal should not be
dismissed for lack of jurisdiction by October 7, 2022. We further advised Bryant if a supplemental
clerk’s record was necessary to show this court’s jurisdiction, he bore the burden to request the
trial court clerk to prepare the record.
On October 19, 2022, the district clerk filed a supplemental clerk’s record containing an
amended judgment signed on September 30, 2022. The amended judgment indicated the trial court
imposed sentence on July 28, 2022 as opposed to April 19, 2022. In general, a trial court has
inherent power to correct, modify, vacate, or amend its rulings so long as it does not exceed the
permitted statutory time period. See TEX. R. APP. P. 21, 22; State v. Aguilera, 165 S.W.3d 695,
698 n.7 (Tex. Crim. App. 2005). If a motion for new trial or motion in arrest of judgment is filed
within 30 days of sentencing, a trial court retains plenary power to modify its sentence. Aguilera,
165 S.W.3d at 697–98. A trial court also retains plenary power to modify its sentence if “the
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modification is made on the same day as the assessment of the initial sentence and before the court
adjourns for the day.” Id. at 698. However, after its plenary power expires, the trial court lacks
the authority to take any action unless such action is clerical and changed through a judgment nunc
pro tunc. State v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994).
Accordingly, because the trial court entered the amended judgment after its plenary power
expired on May 19, 2022, the amended judgment was void and Bryant’s notice of appeal was late.
We therefore ordered Bryant to show cause in writing why this appeal should not be dismissed for
lack of jurisdiction by November 7, 2022. In response, Bryant filed a “Writ of Habeas Corpus Art.
11.07 CCP” seeking permission to file an out-of-time appeal.
Article 11.07 of the Texas Code of Criminal Procedure outlines the procedure for seeking
an out-of-time appeal by filing a post-conviction habeas application made returnable to the Texas
Court of Criminal Appeals. See TEX. CODE CRIM. PROC. ANN. art. 11.07. This court does not have
jurisdiction to grant an out-of-time appeal. See Olivo, 918 S.W.3d at 522; Ater v. Eighth Court of
Appeals, 802 S.W.2d 241, 242-43 (Tex. Crim. App. 1991). Accordingly, we have no choice but
to deny Bryant’s application and dismiss this appeal for lack of jurisdiction. We note nothing in
our opinion or order prevents Bryant from seeking an out-of-time appeal by filing a writ of habeas
corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure in the proper court. See
Olivo, 918 S.W.3d at 522; Ater, 802 S.W.2d at 242-43; Meza v. State, No. 04-22-00339-CR, 2022
WL 2821243, at *1 (Tex. App.—San Antonio July 20, 2022, no pet. h.) (mem. op.) (dismissing
appeal for lack of jurisdiction and explaining “[n]othing in [the] opinion or order prevents
appellant from seeking an out-of-time appeal”).
PER CURIAM
Do Not Publish
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