David Jason Garcia v. The State of Texas

Appellant, David Jason Garcia, attempts to appeal his conviction for sexual

assault. We dismiss the appeal for want of jurisdiction.

This Court's appellate jurisdiction in a criminal case is invoked by a timely filed

notice of appeal. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Absent

a timely filed notice of appeal, a court of appeals does not have jurisdiction to address the

merits of the appeal 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).

Sentence in this matter was imposed on August 21, 2009. No motion for new trial

was filed. Notice of appeal was filed on October 12, 2015. On December 9, 2015, the

Clerk of this Court notified appellant that it appeared that the appeal was not timely

perfected. Appellant was advised 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. On

December 28, 2015, appellant responded that he is trying to appeal his case.

Texas Rule of Appellate Procedure 26.2 provides that an appeal is perfected when

notice of appeal is filed within thirty days after the day sentence is imposed or suspended

in open court unless a motion for new trial is timely filed. TEX. R. APP. P. 26.2(a)(1). The

time within which to file the notice 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. 26.3. Appellant’s notice of

appeal, filed more than six years after sentence was imposed, was untimely, and

accordingly, we lack jurisdiction over the appeal. See Slaton, 981 S.W.2d at 210.

Additionally, we note the trial court has certified that this “is a plea-bargain case, and the

defendant has NO right of appeal.”

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.