NUMBER 13-20-00050-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
BEATRICE CHRISTINE CASTILLO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 319th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Tijerina
Memorandum Opinion by Justice Benavides
Appellant Beatrice Christine Castillo filed a pro se notice of appeal regarding her
judgment of conviction for the second-degree felony offense of robbery. See TEX. PENAL
CODE ANN. 29.02. Concluding that her notice of appeal was untimely, we dismiss the
appeal for want of jurisdiction.
I. BACKGROUND
The trial court imposed sentence in this case on November 25, 2019. Appellant
did not file a motion for new trial and did not file her pro se notice of appeal until January
17, 2020. On January 23, 2020, the Clerk of the Court notified appellant’s trial counsel
that the appeal was untimely and provided ten days to correct the defect, if possible.
Appellant’s counsel did not respond to the Court’s directive, so on March 16, 2020, the
Court abated and remanded the case regarding, inter alia, the timeliness of the notice of
appeal and appellant’s legal representation.
After abatement and remand, appellant’s counsel filed a letter brief regarding the
trial court’s certification of appellant’s right to appeal and the timeliness of her notice of
appeal. Counsel explained that appellant had a right to appeal but did not file her pro se
notice of appeal in a timely manner. Given the foregoing sequence of events, we reinstate
the appeal and address whether appellant’s notice of appeal was timely filed.
II. TIMELINESS OF NOTICE OF APPEAL
Ascertaining whether this Court has jurisdiction is a threshold issue in every case.
See Strange v. State, 258 S.W.3d 184, 185 (Tex. App.—Houston [1st Dist.] 2007, pet.
ref'd). A timely notice of appeal is necessary to invoke this Court’s jurisdiction. Smith v.
State, 559 S.W.3d 527, 531 (Tex. Crim. App. 2018); Castillo v. State, 369 S.W.3d 196,
198 (Tex. Crim. App. 2012); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996).
In a criminal case, a defendant’s notice of appeal is due within thirty days after the day
sentence is imposed in open court, or ninety days after the sentence is imposed in open
court if the defendant timely files a motion for new trial. See TEX. R. APP. P. 26.2(a)(1),(2);
Smith, 559 S.W.3d at 531. While a court of appeals may extend the time to file the notice
2
of appeal, both the notice of appeal and the motion for extension of time must be filed
within fifteen days after the deadline for filing the notice of appeal. See TEX. R. APP. P.
26.3.
In the absence of a timely filed notice of appeal, a court of appeals does not have
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. Castillo, 369 S.W.3d at 198;
Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998); Ex parte Matthews, 452
S.W.3d 8, 11 (Tex. App.—San Antonio 2014, no pet.). Stated otherwise, “[i]f our
jurisdiction has not been legally invoked, our only appropriate disposition is to dismiss for
want of jurisdiction.” Strange, 258 S.W.3d at 185 (Tex. App.—Houston [1st Dist.] 2007,
pet. ref'd); see White v. State, 61 S.W.3d 424, 428 (Tex. Crim. App. 2001) (en banc);
Olivo, 918 S.W.2d at 522.
Here, sentence was imposed on November 25, 2019. Appellant did not file a
motion for new trial. Accordingly, appellant’s notice of appeal was due within thirty days
after the day sentence was imposed in open court, or by December 26, 2019, because
December 25, 2019 was a holiday. See TEX. R. APP. P. 4.1(a), 26.2(a)(1),(2); Smith, 559
S.W.3d at 531. Nevertheless, appellant did not file her pro se notice of appeal until
January 17, 2020. Appellant did not file a motion for extension of time to file her notice of
appeal. See TEX. R. APP. P. 10.5, 26.3. Appellant’s notice of appeal was not filed within
the deadline provided by the appellate rules. See id. R. 26.2.
III. CONCLUSION
Appellant’s notice of appeal was not timely filed. Therefore, we lack jurisdiction to
address the merits of the appeal and can take no action other than to dismiss the appeal
3
for want of jurisdiction. See Castillo, 369 S.W.3d at 198; Slaton, 981 S.W.2d at 210; Ex
parte Matthews, 452 S.W.3d at 11. We note that only the Texas Court of Criminal Appeals
has jurisdiction to grant appellant an out-of-time appeal for her felony conviction. See TEX.
CODE CRIM. PROC. art. 11.07; Ater v. Eighth Ct. of Apps., 802 S.W.2d 241, 243 (Tex. Crim.
App. 1991). Accordingly, we dismiss the appeal and all relief sought therein for want of
jurisdiction.
GINA M. BENAVIDES
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
3rd day of December, 2020.
4
Beatrice Christine Castillo v. State
Combined Opinion