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Court of Appeals of Texas, Dallas.


No. 05-17-01409-CR

Decided: December 22, 2017

Before Chief Justice Wright, Justice Myers, and Justice Brown


Reginald Noble was convicted of aggravated sexual assault of a child and sentenced to life in prison. Appellant's conviction was affirmed on direct appeal. Noble v. State, No. 08-01-00035-CR, 2002 WL 221886 (Tex. App.—El Paso Feb. 4, 2002, pet. ref'd) (not designated for publication). The Court now has before it appellant's December 1, 2017 “Notice of Appeal,” “Motion to Vacate a Void Judgment,” and “Motion for New Trial.” In these documents, appellant complains that the trial court had no subject matter jurisdiction over his case, making the underlying judgment void.

Rule 21 of the Texas Rules of Appellate Procedure provides the guidelines for filing a motion for new trial in a criminal case. TEX. R. APP. P. 21. Under rule 21.4(a), a defendant may “file a motion for new trial before, but no later than 30 days after, the date when the trial court imposes or suspends sentence in open court.” TEX. R. APP. P. 21.4. The defendant must file the motion in the trial court, and it is the trial court that rules on the motion. See TEX. R. APP. P. 21.6, 21.8, 21.9. The deadlines set out in rule 21 have jurisdictional significance; a motion for new trial is a purely statutory remedy, and the movant must strictly adhere to the terms of the statute to take advantage of this remedy. Drew v. State, 743 S.W.2d 207, 223 (Tex. Crim. App. 1987). “When jurisdiction with respect to a particular matter is derived wholly from statute, the statutory provisions are mandatory and exclusive and must be complied with in all respects, and the court in exercising its particular authority is a court of limited jurisdiction.” Id. Jurisdiction cannot be “substantially” invoked; it either attaches or it does not. Ex parte Kirby, 626 S.W.2d 533, 534 (Tex. Crim. App. 1981). If there is no jurisdiction, “the power of the court to act is as absent as if it did not exist.” Ex parte Caldwell, 383 S.W.2d 587, 589 (Tex. Crim. App. 1964).

In this case, the trial court imposed judgment on December 6, 2000. Although appellant had until January 5, 2001 to file a motion for new trial in the trial court, he filed his motion for new trial on December 1, 2017 in this Court. His motion is untimely and filed in the wrong court. As a result, it fails to invoke our jurisdiction. See TEX. R. APP. P. 21.4.

Similarly, a timely filed notice of appeal is required to invoke this Court's jurisdiction. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998). In the absence of a timely perfected notice of appeal, the Court can take no action other than to dismiss the appeal. Id. A defendant perfects his appeal by filing with the trial court clerk, within thirty days after the date sentence was imposed, or within ninety days after sentencing if the defendant timely filed a motion for new trial, a written notice of appeal showing his or her desire to appeal. See TEX. R. APP. P. 25.2(b), (c), 26.2(a). Appellant's December 1, 2017 notice of appeal is untimely as to his 2000 conviction and fails to invoke our jurisdiction. See TEX. R. APP. P. 26.2(a).

To the extent that appellant seeks to challenge a purportedly void judgment by filing a post-conviction writ of habeas corpus, this Court has no jurisdiction over such proceedings. See TEX. CODE CRIM. PROC. ANN. arts. 11.05, 11.07 (West 2015) (identifying courts that may grant post-conviction writs of habeas corpus and procedure for post-conviction habeas corpus applications); In re McAfee, 53 S.W.3d 715, 717–18 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding) (“Article 11.07 contains no role for the courts of appeals; the only courts referred to are the convicting court and the Court of Criminal Appeals.”).

We dismiss this appeal for lack of jurisdiction.


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