NUMBER 13-12-00616-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
CESAR EVARISTO DURAN, Appellant,
v.
THE STATE OF TEXAS, Appellee.
____________________________________________________________
On appeal from the 332nd District Court
of Hidalgo County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Justices Garza, Benavides, and Perkes
Memorandum Opinion Per Curiam
Appellant, Cesar Evaristo Duran, attempted to perfect an appeal from a conviction
for aggravated sexual assault. We dismiss the appeal for want of jurisdiction.
The trial court imposed sentence in this matter on June 14, 2012. Appellant filed
a motion for new trial on July 12, 2012, and a notice of appeal on September 14, 2012.
On October 15, 2012, 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.1 Appellant
has not filed a response to the Court=s notice.
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. 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. 26.3.
Appellant timely filed a motion for new trial. Therefore, his notice of appeal was
due to have been filed on or before September 12, 2012. See TEX. R. APP. P. 26.2(a)(2).
Although the notice of appeal herein was filed within the fifteen day time period, no such
motion for extension of time was filed within the fifteen day time period. See id.
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). AWhen a
notice of appeal is filed within the fifteen-day period but no timely motion for extension of
time is filed, the appellate court lacks jurisdiction.@ Olivo, 918 S.W.2d at 522. Absent a
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The trial court=s certification of the defendant=s right to appeal shows that this is a plea-bargain case
and the defendant has no right to appeal. See TEX. R. APP. P. 25.2(a)(2). On October 16, 2012, this Court
notified appellant=s counsel of the trial court=s certification and ordered counsel to: (1) review the record; (2)
determine whether appellant has a right to appeal; and (3) forward to this Court, by letter, counsel=s findings as
to whether appellant has a right to appeal, or, alternatively, advise this Court as to the existence of any amended
certification.
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timely filed notice of appeal, a court of appeals does not obtain jurisdiction to address the
merits of the appeal in a criminal case 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).
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) (Vernon 2005); see also Ex parte Garcia, 988 S.W.2d 240
(Tex. Crim. App. 1999).
The appeal is DISMISSED FOR WANT OF JURISDICTION.
PER CURIAM
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the the
10th day of January, 2013.
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