Ex Parte Minh Duy Nguyen ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
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No. 02-20-00134-CR
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Ex parte Minh Duy Nguyen
On Appeal from the 158th District Court
Denton County, Texas
Trial Court No. F-2001-0558-B (WHC4)
Before Gabriel, Kerr, and Birdwell, JJ.
Memorandum Opinion by Justice Gabriel
MEMORANDUM OPINION
Appellant Minh Duy Nguyen attempts to appeal from the trial court’s order
denying his habeas-corpus application arising from a judgment of conviction ordering
community supervision. See Tex. Code Crim. Proc. Ann. art. 11.072, § 7. Because he
did not timely file his notice of appeal from the trial court’s order, we dismiss the
attempted appeal for want of jurisdiction. See Tex. R. App. P. 43.2(f).
On July 20, 2001, Nguyen pled guilty to the state-jail-felony offense of delivery
of a controlled substance, the trial court deferred adjudicating his guilt, and the trial
court placed him on community supervision for two years. On December 20, 2018,
Nguyen filed a habeas-corpus application and asserted that his trial counsel had
affirmatively misled him regarding the immigration consequences of his plea. Had he
been aware of those consequences, Nguyen contended he would have not pleaded
guilty. The trial court denied the application on March 4, 2019.
The next day, Nguyen filed a second application, raising the same issue.
Nguyen’s trial counsel filed an affidavit stating that although he could not recall the
exact words he used, he would have told Nguyen that, based on his guilty plea, he
would be considered guilty of an aggravated felony under immigration law, would be
unable to work legally in the United States, and would be deported. The trial court
found Nguyen’s trial counsel to be credible in its findings and conclusions and denied
Nguyen’s second application on August 4, 2020. In its order, the trial court also
granted Nguyen an out-of-time appeal “of this Court’s May 19, 2020 order to the
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extent that order was denied.” Nguyen filed his notice of appeal on September 22,
2020.
Nguyen has the statutory right to appeal the trial court’s denial; however, the
notice of appeal must be filed within thirty days after the appealable order was entered
to invoke this court’s jurisdiction. See Tex. Code Crim. Proc. Ann. art. 11.072, § 8; Ex
parte Gutierrez, No. 03-17-00644-CR, 2017 WL 5247516, at *2 (Tex. App.—Austin
Nov. 7, 2017, 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) (mem. op.). Nguyen filed his
notice of appeal on September 22, 2020—forty-nine days after the trial court’s
August 4, 2020 order. Even if the trial court intended to grant Nguyen an out-of-time
appeal from the March 4, 2019 denial of Nguyen’s first application,1 the extension
placed him at the point when he could give notice of appeal. See Ex parte Salim,
595 S.W.3d 844, 854 (Tex. App.—Fort Worth 2020, no pet.) (mem. op.). In other
words, the grant was not of an unlimited duration but, rather, allowed Nguyen to
appeal as of the date of the extension order—August 4, 2020. Even with the trial
court’s grant of an out-of-time appeal, Nguyen failed to timely do so.
We notified Nguyen of this jurisdictional issue, but Nguyen has not responded
showing grounds to continue the appeal. See Tex. R. App. P. 44.3. Thus, we dismiss
his appeal for want of jurisdiction.
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The trial court granted an out-of-time appeal from a May 19, 2020 denial;
however, our review of the record shows that no order was entered on that date.
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/s/ Lee Gabriel
Lee Gabriel
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: October 29, 2020
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