Scott William Hess v. State ( 2020 )

NUMBER 13-20-00224-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
SCOTT WILLIAM HESS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
____________________________________________________________
On appeal from the 197th District Court
of Cameron County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Tijerina
Memorandum Opinion by Justice Benavides
Appellant, Scott William Hess, proceeding pro se, attempts to appeal a judgement
entered in trial court cause number 2012-DCR-1617-C in the 197th District Court of
Cameron County, Texas. We DISMISS this appeal for lack of jurisdiction.
On October 12, 2012, appellant was convicted of the felony offense of indecency
with a child. On April 20, 2020, appellant filed a notice of appeal. On May 6, 2020, the
Clerk of this Court notified appellant that it appeared that the appeal was not timely
perfected and that the appeal would be dismissed if the defect was not corrected within
ten days from the date of receipt of the Court’s directive. Appellant filed a response stating
he is just “don’t recall filing an appeal” and asserts a matter “kinda like a form of ‘habeas
corpus’”.
This Court's appellate jurisdiction in a criminal case is invoked by a timely filed
notice of appeal. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Absent a
timely filed notice of appeal, a court of appeals does not have jurisdiction to address the
merits of the appeal and can take no action other than to dismiss the appeal for want of
jurisdiction. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998).
Unless a motion for new trial has been timely filed, a notice of appeal must be filed
within thirty days after the day sentence is imposed or suspended in open court, or after
the day the trial court enters an appealable order. TEX. R. APP. P. 26.2(a)(1). Where a
timely motion for new trial has been filed, the notice of appeal must be filed within ninety
days after the day sentence is imposed or suspended in open court. See id. R. 26.2(a)(2).
The time within which to file the notice may be enlarged if, within fifteen days after the
deadline for filing the notice, the party files the notice of appeal and a motion complying
with Rule 10.5(b) of the Texas Rules of Appellate Procedure. See id. R. 26.3.
Appellant’s notice of appeal, filed more than seven years after sentence was
imposed, was untimely, and accordingly, we lack jurisdiction over the appeal. See
Slaton, 981 S.W.2d at 210. Moreover, jurisdiction to grant post-conviction habeas corpus
relief in felony cases rests exclusively with the Texas Court of Criminal Appeals. TEX.
CODE CRIM. PROC. ANN. art. 11.07, § 5 (Vernon Supp. 2011); Bd. of Pardons & Paroles
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ex rel. Keene v. Court of Appeals for the Eighth Dist., 910 S.W.2d 481, 483 (Tex. Crim.
App. 1995); In re McAfee, 53 S.W .3d 715, 717–18 (Tex. App.—Houston [1st Dist.] 2001,
orig. proceeding).
Appellant may be entitled to an out-of-time appeal by filing a post-conviction writ
of habeas corpus returnable to the Texas Court of Criminal Appeals; however, the
availability of that remedy is beyond the jurisdiction of this Court. See TEX. CODE CRIM.
PROC. ANN. art. 11.07, § 3(a) (West, Westlaw through 2013 3d C.S.); see also Ex parte
Garcia, 988 S.W.2d 240, 241 (Tex. Crim. App. 1999) (per curiam). The appeal is
DISMISSED FOR LACK OF JURISDICTION. Accordingly, all pending motions,
specifically including appellant’s motion for determination of jurisdiction, motion for court
appointed attorney, and motion for discovery and to compel are all DISMISSED as moot.
GINA M. BENAVIDES
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
15th day of October, 2020.
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