NUMBER 13-19-00197-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
ERNESTO BENAVIDES JR., Appellant,
v.
THE STATE OF TEXAS, Appellee.
____________________________________________________________
On appeal from the 107th District Court
of Cameron County, Texas.
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MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Perkes
Memorandum Opinion by Justice Benavides
Appellant Ernesto Benavides Jr., proceeding pro se, filed a notice of appeal from
the judgment rendered against him on October 28, 2013 in cause number 2013-DCR-
0654-A in the 107th District Court of Cameron County, Texas. Specifically, appellant
filed a “Motion Requesting Out-of-Time Appeal Showing Cause and Prejudice.” We
dismiss the appeal for want of jurisdiction.
Texas Rule of Appellate Procedure 26.2 provides that an appeal is perfected when
the notice of appeal is 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); see Rodarte v. State, 860 S.W.2d 108, 109 (Tex. Crim. App. 1993);
Lair v. State, 321 S.W.3d 158, 159 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). This
period is extended to ninety days after the sentence is imposed or suspended in open
court if the defendant timely files a motion for new trial. TEX. R. APP. P. 26.2(a)(2); Welsh
v. State, 108 S.W.3d 921, 922 (Tex. App.—Dallas 2003, no pet.). The time to file the
notice of appeal 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. 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); Olivo v.
State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); Pickens v. State, 105 S.W.3d 746,
748 (Tex. App.—Austin 2003, no pet.).
On April 30, 2019, the Clerk of this Court notified appellant that it appeared that
his appeal was not timely perfected. The Clerk advised appellant 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. In response, appellant filed a motion to establish jurisdiction, or in
the alternative, for an extension of time to file a response to this Court’s defect notice. In
sum, appellant contends that his notice of appeal is timely and that we should address
his appeal to remedy a lack of due process in this case.
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Based on the documents on file in this case, appellant’s notice of appeal was filed
more than five years too late. See generally TEX. R. APP. P. 26.2(a). We note 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 beyond the jurisdiction of this Court. See TEX. CODE CRIM. PROC. ANN. art.
11.07, § 3(a); see also Ex parte Garcia, 988 S.W.2d 240, 241 (Tex. Crim. App. 1999).
We DISMISS this appeal and all pending motions for want of jurisdiction.
GINA M. BENAVIDES,
Justice
Do not publish.
See TEX. R. APP. P. 47.2(b).
Delivered and filed the
13th day of June, 2019.
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