FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
FEBRUARY 14, 2007 ______________________________
ELI EDWARDS,
Appellant
v.
THE STATE OF TEXAS,
Appellee _________________________________
FROM THE 31st DISTRICT COURT OF WHEELER COUNTY;
NOS. 4294, 4295, 4296, 4297, 4298, 4299; HON. STEVEN R. EMMERT, PRESIDING _______________________________
ABATEMENT AND REMAND __________________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Eli Edwards (appellant) appeals his criminal convictions. Per two extensions of the deadline previously granted him, his appellate briefs were due by February 8, 2007, with the admonition that no further extensions would be granted. Yet, instead of filing the appellate brief in each cause, counsel has again filed another motion for extension of time. This court informed appellant that failure to comply with the February 8th deadline would result in the appeals being abated and remanded to the trial court.
Consequently, we abate the appeals and remand the causes to the 31st District Court of Wheeler County (trial court) for further proceedings. Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine the following:
1. whether appellant is indigent;
2. whether appellant desires to prosecute the appeals; and
3. whether appellant has been denied the effective assistance of counsel due to appellate counsel's failure to timely file an appellate brief in each cause. See Evitts v. Lucey, 469 U.S. 387, 394, 105 S. Ct. 830, 834-35, 83 L. Ed. 2d 821, 828 (1985) (holding that an indigent defendant is entitled to the effective assistance of counsel on the first appeal as of right and that counsel must be available to assist in preparing and submitting an appellate brief).
We further direct the trial court to issue findings of fact and conclusions of law addressing the foregoing subjects. Should the trial court find that appellant desires to pursue the appeals, is indigent, and has been denied effective assistance of counsel, we further direct it to appoint new counsel to assist in the prosecution of the appeals. The name, address, phone number, telefax number, and state bar number of the new counsel, if any, who will represent appellant on appeal must also be included in the court's findings of fact and conclusions of law. Furthermore, the trial court shall also cause to be developed 1) a supplemental clerk's record containing the findings of fact and conclusions of law and 2) a reporter's record transcribing the evidence and argument presented at the aforementioned hearing. Additionally, the trial court shall cause the supplemental clerk's record to be filed with the clerk of this court on or before March 16, 2007. Should additional time be needed to perform these tasks, the trial court may request same on or before March 16, 2007.
It is so ordered.
Per Curiam
Do not publish.
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NO. 07-11-00241-CR; 07-11-00242-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
JULY 15, 2011
DEARL RAY STRICKLAND, APELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;
NO. 58,674-D, 58,675-D; HONORABLE DON R. EMERSON, JUDGE
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Dearl Ray Strickland, filed a notice of appeal on June 21, 2011, challenging his conviction and sentence in trial court cause numbers 58,674-D and 58,675-D. Pursuant to a plea bargain agreement, the offense alleged in cause number 58,675-D, indecency with a child by sexual contact, was dismissed, and appellant was sentenced in open court on March 2, 2009, to incarceration for a period of 25 years in cause number 58,674-D for the offense of aggravated sexual assault of a child. We dismiss the appeals for want of jurisdiction.
In a criminal case in which no motion for new trial is filed, the notice of appeal must be filed within 30 days after the date sentence is imposed in open court. Tex. R. App. P. 26.2(a). The time within which to file the notice may be enlarged if, within 15 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. Tex. R. App. P. 26.3. Under these rules, appellant's notice of appeal was due to be filed on April 1, 2009, but was not filed with the trial court clerk until June 21, 2011, more than two years outside the fifteen-day extension period.
A notice of appeal which complies with the Texas Rules of Appellate Procedure is essential to vest this Court with jurisdiction. See Slaton v. State, 981 S.W.2d 208, 209-10 (Tex.Crim.App. 1998). If an appeal is not timely perfected, this Court does not obtain jurisdiction to address the merits of the appeal, and can take no action other than to dismiss the appeal. Id. at 210.
We acknowledge that 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 also beyond the jurisdiction of this Court.[1] See Tex. Code Crim. Proc. Ann. art. 11.07, § 3 (West Supp. 2010); Ex parte Garcia, 988 S.W.2d 240, 241 (Tex.Crim.App. 1999).
Consequently, we dismiss this appeal for want of jurisdiction.
Mackey K. Hancock
Justice
Do not publish.
[1] We note, however, that the certification of defendants right of appeal filed in trial court cause number 58,674-D indicates that it is a plea-bargain case, and the defendant has NO right of appeal and the defendant has waived the right of appeal. Thus, even if appellant is granted an out-of-time appeal in this case, the case will be subject to dismissal if a certification that shows that appellant has the right of appeal is not made part of the record. See Tex. R. App. P. 25.2(d).