NUMBER 13-12-00144-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
BRIAN WILSHUSEN, Appellant,
v.
THE STATE OF TEXAS, Appellee.
____________________________________________________________
On appeal from the 148th District Court
of Nueces County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Justices Benavides, Vela, and Perkes
Memorandum Opinion Per Curiam
Appellant, Brian Wilshusen, attempted to perfect an appeal from a conviction for
possession of cocaine in trial court cause number 07-CR-1080-E. We dismiss the
appeal for want of jurisdiction.
Sentence in this matter was imposed on January 23, 2012. No motion for new
trial was filed. Notice of appeal was filed on February 27, 2012. On March 1, 2012, the
Clerk of this Court notified appellant that it appeared that the appeal was not timely
perfected. Appellant was advised 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’s
counsel has not responded to this notice.
Texas Rule of Appellate Procedure 26.2 provides that an appeal is perfected when
notice of appeal is filed within thirty days after the day sentence is imposed or suspended
in open court unless a motion for new trial is timely filed. TEX. R. APP. P. 26.2(a)(1). 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 was due to have been filed on or before February 22,
2012. See id. R. 26.2(a)(2). Within the fifteen day time period, appellant did not file a
motion for extension of time to file his notice of appeal and did not file his notice of appeal.
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). “When 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
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
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availability of that remedy is beyond the jurisdiction of this Court. See TEX. CODE CRIM.
PROC. ANN. art. 11.07, § 3(a) (West 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
3rd day of May, 2012.
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