                                  NUMBER 13-09-00099-CR

                                  COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


GRACIELA CASTILLO,                                                                           Appellant,

                                                     v.

THE STATE OF TEXAS,                                                                           Appellee.


                       On appeal from the 319th District Court
                             of Nueces County, Texas.


                                MEMORANDUM OPINION

      Before Chief Justice Valdez and Justices Benavides and Vela
              Memorandum Opinion by Chief Justice Valdez

        Appellant, Graciela Castillo, was charged by indictment with robbery, a second-

degree felony. See TEX . PENAL CODE. ANN . § 29.02 (Vernon 2003). Castillo pleaded guilty

to the offense and “true” to the enhancement paragraph.1 See id. § 12.42(b) (Vernon
        1
         The trial court’s judgm ent does not indicate that Castillo pleaded “true” to the enhancem ent.
However, after reviewing the reporter’s record, it is clear that Castillo pleaded “true” in open court to the
enhancem ent.
Supp. 2009) (“[I]f it is shown on the trial of a second-degree felony that the defendant has

been once before convicted of a felony, on conviction he shall be punished for a first-

degree felony.”). The trial court sentenced Castillo to fifty years’ confinement in the

Institutional Division of the Texas Department of Criminal Justice. By two issues, Castillo

argues that:        (1) she received ineffective assistance of counsel during the plea

proceedings; and (2) the sentence imposed is cruel, unusual, and disproportionate.2 We

dismiss the appeal for want of jurisdiction.

                                               I. BACKGROUND

        Castillo was charged by indictment on October 30, 2008, with robbery alleged to

have occurred on October 17, 2008. On December 10, 2008, the State filed a notice of

intent to enhance Castillo’s punishment to a first-degree felony by alleging that Castillo had

three prior felony convictions. See id. On December 11, 2008, Castillo pleaded guilty to

the robbery charge, and “true” to the enhancement.

        At the hearing, Castillo stated that she had discussed the case with her attorney,

that she was satisfied with his representation, and that she freely and voluntarily signed a

stipulation of evidence. Castillo also affirmed that she was entering her plea of guilty freely

and voluntarily. After the State presented evidence substantiating Castillo’s plea and prior

convictions, the trial court accepted Castillo’s guilty plea, found the State’s enhancement

allegations to be true, and sentenced Castillo to fifty years’ imprisonment. This appeal

ensued.




        2
         The trial court has certified that this case “is not a plea-bargain case, and the defendant has the right
of appeal.” See T EX . R. A PP . P. 25.2(a)(2).

                                                        2
                                       II. JURISDICTION

       As a preliminary matter, we must address the State’s assertion that this appeal

should be dismissed for want of jurisdiction because Castillo did not file a timely notice of

appeal.

       In a criminal case, a defendant must file a written notice of appeal with the trial court

clerk. TEX . R. APP. P. 25.2(c). The notice is due within thirty days, or ninety days if a

motion for new trial is filed, after the day sentence is imposed in open court. Id. at R.

26.2(a). The time within which to file the notice may be enlarged if, within fifteen days after

the deadline for doing so, the party files the notice of appeal in the trial court and a motion

complying with Rule 10.5(b) of the Texas Rules of Appellate Procedure in this Court. Id.

at R. 10.5(b), 26.3.

       The trial court sentenced Castillo on December 11, 2008. On December 30, 2008,

Castillo sent an “Inmate Communication Form” to the trial court stating:

                       NUECES COUNTY SHERIFF’S DEPARTMENT
                                   JAIL DIVISION
                           INMATE COMMUNICATION FORM

       ...

               I just got a 50 year sentence. I need to file a motion to reconsider but
       I have not received a court appointed attorney yet (still waiting on response).
       Do I need him to file this motion or do I do this on my own and if so how do
       I do this[?] I only have 30 days from the time I was sentenced. Please reply.

The bottom of the correspondence contains the following handwritten notations entered

by the trial court:

               1-5-09        [T]he court received your rep. [sic] 12/30/08—I will
                             present this to the judge once he returns 1-12-09. Your

                                               3
                                  sister called on your behalf today & was advised same.
                                  Thank you. SB [sic] 319th

                 Atty Jim Lawrence to file m2reconsider [sic]. 1-11-09

The record does not indicate that Castillo later filed a pro se “motion to reconsider,” or that

Lawrence filed a “motion to reconsider,” any post-hearing motions, or a notice of appeal.

        There is no evidence in the record that Castillo’s retained trial counsel, Jim

Lawrence, withdrew as counsel. However, on February 12, 2009, the trial court found

Castillo indigent and appointed appellate counsel. On February 19, 2009, Castillo’s

appellate counsel filed a document entitled “Amended Notice of Appeal.”3 On February 20,

2009, this Court notified Castillo that her appeal did not appear to have been timely

perfected and advised that she take steps to correct the defect. On February 26, 2009,

Castillo’s appellate attorney sent this Court a letter stating, in pertinent part:

              Ms. Castillo should not be penalized due to her trial attorney not
        communicating with her, not [sic] her trial attorney completing his duties
        which consisted of following through filing an appeal. . . .4

Castillo’s appellate attorney attached three pro se correspondences between Castillo and

the trial court.     On appeal, Castillo asserts, without argument or authority, that her

December 30, 2008, “Inmate Communication Form” constitutes a motion for new trial.

        Through appellate counsel’s correspondence with this Court, Castillo asks that we


        3
           Castillo first expressed a desire to appeal in a pro se letter dated January 20, 2009 and received by
the trial court on February 5, 2009. Because this notice of appeal was filed m ore than thirty days after
Castillo’s sentence was im posed in open court on Decem ber 11, 2008, it is untim ely unless a m otion for new
trial was tim ely filed. See T EX . R. A PP . P. 26.2(a).

        4
          In her appeal, Castillo argues that Lawrence provided ineffective assistance at various points in the
trial; however, Castillo does not allege that Lawrence’s representation of her after the sentence was im posed
was ineffective.



                                                       4
liberally construe her December 30, 2008 correspondence as a motion for new trial,

because Castillo’s trial counsel failed to effectively represent her after the plea hearing.

“When a motion states grounds that would entitle an accused to a new trial, it is to be

considered a motion for new trial, regardless of its title.” State v. Herndon, 115 S.W.3d

231, 233 (Tex. App.–Corpus Christi 2003), vacated on other grounds, 215 S.W.3d 901

(Tex. Crim. App. 2007). In the present case, Castillo does not request a “motion for new

trial” in her December 30, 2008 correspondence with the trial court. Instead, Castillo’s

correspondence is entitled “Inmate Correspondence Form,” seeks guidance on how to file

a “motion to reconsider,” and requests the status of the appointment of an appellate

attorney. Castillo’s correspondence does not state any grounds that would entitle her to

a new trial. Moreover, the trial court’s notation that Lawrence would file a “motion to

reconsider” on Castillo’s behalf, indicates that the trial court did not consider Castillo’s

inmate correspondence form to be a motion for new trial. Accordingly, we cannot conclude

that Castillo’s December 30, 2008 correspondence constitutes a motion for new trial.

Consequently, Castillo’s notice of appeal is untimely, and we dismiss this appeal for want

of jurisdiction.

       We note that the period in which a motion for new trial motion may be filed is a

critical stage requiring representation of counsel unless the right is waived. Cooks v. State,

240 S.W.3d 906, 910-911 (Tex. Crim. App. 2007) (citing Massingill v. State, 8 S.W.3d 733,

736-37 (Tex. App.–Austin 1999, pet. ref’d) (“in order to obtain meaningful appeal,

sometimes a defendant must prepare, file, present, and obtain a hearing on a motion for

new trial; it is unreasonable to require him to do this without assistance”)). Oftentimes, as



                                              5
in the present appeal wherein Castillo asserts that she was denied effective assistance of

counsel at the plea hearing, the motion for new trial is a necessary step to develop facts

that are not otherwise contained in the record. See Cooks, 240 S.W.3d at 910-911.

       Appellate counsel’s letter to this Court, which alleges that trial counsel did not

complete his duties by filing an appeal on Castillo’s behalf, indicates that Castillo was

unrepresented during a critical stage of the appellate process. See id. Appellate counsel’s

letter, therefore, requests that we conclude that trial counsel did not effectively represent

Castillo during the period in which a motion for new trial could have been filed and then,

because Castillo was pro se, liberally construe the December 30, 2008 correspondence

as a motion for new trial. While such a construction would confer jurisdiction upon this

Court, our analysis of Castillo’s first appellate issue—ineffective assistance of counsel

during the plea hearing—would then be constrained to an appellate record that Castillo

was purportedly denied the opportunity to develop. See Thompson v. State, 9 S.W.3d 808,

813-14 (Tex. Crim. App.1999) (noting that the trial record will generally not be sufficient to

establish an ineffective assistance of counsel claim).

       We therefore acknowledge that Castillo 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.

See TEX . CODE CRIM . PROC . ANN . art. 11.07, § 3(a) (Vernon Supp 2009). “The effect of

granting an out-of-time appeal is that it restores the defendant to the position he occupied

immediately after the trial court signed the judgment of conviction.” Mestas v. State, 214

S.W.3d 1, 4 (Tex. Crim. App. 2007). Therefore, a defendant who obtains an out-of-time


                                              6
appeal by means of writ of habeas corpus is returned to the point at which he can give

notice of appeal and file a motion for new trial. See id. Although the Court of Criminal

Appeals may consider the aforementioned facts in determining whether to grant an out-of

time appeal, Jones v. State, 98 S.W.3d 700, 703-04 (Tex. Crim. App. 2003), we must

dismiss where no timely notice of appeal has been filed.5 Slanton v. State, 981 S.W.2d

208, 210 (Tex. Crim. App. 1998).

                                              III. CONCLUSION

        We dismiss this appeal for want of jurisdiction.




                                                             ________________________
                                                             ROGELIO VALDEZ
                                                             Chief Justice

Do not publish.
TEX . R. APP. P. 47.2(b)
Delivered and filed the
20th day of May, 2010.




        5
          Although rule 2 of the Texas Rules of Appellate Procedure provides that "an appellate court m ay— to
expedite a decision or for other good cause— suspend a rule's operation in a particular case and order a
different procedure," T EX . R. A PP . P. 2, this rule cannot be invoked to create jurisdiction where none exists.
Olivio v. State, 918 S.W .2d 519, 523 (Tex. Crim . App. 1996).



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