CHERRY v. STATE (2017)

MEMORANDUM OPINION

DISMISSED FOR WANT OF JURISDICTION

A jury found Appellant Steven P. Cherry guilty of burglary as charged in count II of the indictment, and the trial court sentenced Appellant to thirty-years' confinement in the Texas Department of Criminal Justice—Institutional Division. The sentence was imposed on August 9, 2016, and Appellant timely filed a motion for new trial on September 6, 2016. See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996).

Because Appellant timely filed a motion for new trial, his notice of appeal was due to be filed on November 7, 2016. See TEX. R. APP. P. 26.2(a)(2). The clerk's record contains the trial court's certification of defendant's right to appeal, see id. R. 25.2(a)(2), but it does not contain a notice of appeal, see id. R. 26.2(a).

Accordingly, on December 13, 2016, we ordered Appellant to show cause in writing by January 12, 2017, why this appeal should not be dismissed for want of jurisdiction. See Olivo, 918 S.W.2d at 522 (“A timely notice of appeal is necessary to invoke a court of appeals' jurisdiction.”).

On December 19, 2016, Appellant filed a pro se response stating he wants to pursue his appeal. He states his court-appointed trial counsel asked him if he wanted to appeal, he said yes, but he does not know whether his trial counsel filed a notice of appeal. The trial court appointed appellate counsel on December 2, 2016.

On January 13, 2017, Appellant's court-appointed appellate counsel moved this court for permission to file a late notice of appeal. Counsel notes she was appointed after the deadline to file a notice of appeal had passed and no notice of appeal was filed.

The appellate record confirms no notice of appeal was filed. “If a notice of appeal is not timely filed, the court of appeals has no option but to dismiss the appeal for lack of jurisdiction.” Castillo v. State, 369 S.W.3d 196, 198 (Tex. Crim. App. 2012); accord Olivo, 918 S.W.2d at 522.

Accordingly, Appellant's motion to file a late notice of appeal is denied. We dismiss this appeal for want of jurisdiction.¹ See Castillo, 369 S.W.3d at 198; Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998); Olivo, 918 S.W.2d at 522; Shute v. State, 744 S.W.2d 96, 97 (Tex. Crim. App. 1988) (no notice of appeal).

FOOTNOTES

1.   Appellant may file an application for writ of habeas corpus for permission to pursue an out-of-time appeal. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (West 2015); Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (stating that an out-of-time appeal from a final felony conviction may be sought by filing a writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure).

PER CURIAM