HARGROVE v. STATE

No. 11-17-00082-CR.

STEVEN ASHLEY HARGROVE, Appellant, v. THE STATE OF TEXAS, Appellee.

Court of Appeals of Texas, Eleventh District, Eastland.


Attorney(s) appearing for the Case

Adrian Chavez , for Steven Ashley Hargrove, Appellant.

R. N. (Bobby) Bland , District Attorney, Michael Bloch , Assistant, for State of Texas.

Panel consists of: Wright, C.J., Willson, J., and Bailey, J.


Do not publish. See TEX. R. APP. P. 47.2(b).

MEMORANDUM OPINION

PER CURIAM.

Appellant, Steven Ashley Hargrove, filed an untimely notice of appeal from a conviction for the offense of possession of a controlled substance, a state jail felony. We dismiss the appeal.

The documents on file in this case indicate that Appellant's sentence was imposed on February 7, 2017, and that his notice of appeal was filed in the district clerk's office on April 3, 2017. When the appeal was filed in this court, we notified Appellant that the notice of appeal appeared to be untimely—as it was due to be filed on or before March 9, 2017. We also informed Appellant that the appeal may be dismissed for want of jurisdiction, and we requested that Appellant respond to our letter and show grounds to continue.

Appellant's counsel has responded to our jurisdictional inquiry by filing a motion to extend the time in which to file his notice of appeal. He acknowledges that a motion for new trial was not filed and that the notice of appeal was therefore untimely. Counsel explains that he mistakenly believed that a motion for new trial had been filed and that Appellant's file had been closed by mistake.

Pursuant to TEX. R. APP. P. 26.2(a), a notice of appeal is due to be filed either (1) within thirty days after the date that sentence is imposed in open court or (2) if the defendant timely files a motion for new trial, within ninety days after the date that sentence is imposed in open court. A notice of appeal must be in writing and filed with the clerk of the trial court. TEX. R. APP. P. 25.2(c)(1). The documents on file in this court reflect that Appellant did not file a motion for new trial and that his notice of appeal was not filed with the clerk of the trial court until fifty-five days after sentence was imposed. The notice of appeal was, therefore, untimely. Furthermore, Appellant did not file a timely motion for extension. See TEX. R. APP. P. 26.3(b). Absent a timely filed notice of appeal or the granting of a timely motion for extension of time, we do not have jurisdiction to entertain the appeal. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998); Olivo v. State, 918 S.W.2d 519, 522-23 (Tex. Crim. App. 1996); Rodarte v. State, 860 S.W.2d 108, 110 (Tex. Crim. App. 1993).

We are not authorized to grant the relief requested by Appellant in his motion. Article 11.07 of the Texas Code of Criminal Procedure vests complete jurisdiction over postconviction relief from final felony convictions in the Texas Court of Criminal Appeals. TEX. CODE CRIM. PROC. ANN. art. 11.07 (West 2015); Hoang v. State, 872 S.W.2d 694, 697 (Tex. Crim. App. 1993); Ater v. Eighth Ct. of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (orig. proceeding). The Court of Criminal Appeals is the only court with jurisdiction to consider a motion for an out-of-time appeal. See Ater, 802 S.W.2d at 243. The appropriate vehicle for Appellant to seek an out-of-time appeal is for him to pursue a writ of habeas corpus from the Court of Criminal Appeals pursuant to Article 11.07.

This appeal is dismissed for want of jurisdiction.


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