












 
 
 
 
 
 
                                       NUMBER 13-10-00606-CR
 
                                 COURT
OF APPEALS
 
                     THIRTEENTH
DISTRICT OF TEXAS
 
                         CORPUS
CHRISTI - EDINBURG

____________________________________________________________
 
NESTOR GARZA,                                                                    APPELLANT,
 
                                                             v.
 
THE STATE OF TEXAS,                                                            APPELLEE.

____________________________________________________________
 
                          On
Appeal from the 357th District Court 
                                      of
Cameron County, Texas.
____________________________________________________________
 
                               MEMORANDUM
OPINION
 
              Before Chief Justice Valdez and Justices Rodriguez and Vela
Memorandum Opinion
Per Curiam
 
This
cause is before the Court on appellant’s “Motion to find Notice of Appeal
Timely Filed or in the alternative Motion to Extend Time to File Out of Time
Notice of Appeal.”  Appellant, Nestor Garza, was convicted for murder and
sentenced to seventy-five years’ imprisonment.  Garza’s sentence was imposed on
November 12, 2008.  A motion for new trial was not filed, therefore Garza’s
notice of appeal was due on or before December 12, 2008.  See Tex. R. App. P. 4.1 (a), 26.2(a).  Garza’s
appeal was not filed until January 23, 2009.  Because the original notice of
appeal was not filed timely, this Court lacked jurisdiction to consider the
appeal and dismissed it for want of jurisdiction on February 26, 2009.  Garza
v. State, No. 13-09-00049-CR (Tex. App.—Corpus Christi Feb. 26, 2009, no
pet.)(not designated for publication).
Garza
sought post-conviction habeas relief under article 11.07.  On May 19, 2010, the
court of criminal appeals granted Garza an out-of-time appeal.  Ex parte
Garza, No. AP-76,353 (Tex. Crim. App. May 19, 2010)(not designated for
publication).  The court of criminal appeals states in its opinion that if Garza
desires to prosecute the appeal, “he must take affirmative steps to file a
written notice of appeal in the trial court within 30 days after the mandate of
this Court issues.”  The court of criminal appeals issued the mandate on June
14, 2010.
Garza
did not file a notice of appeal until October 14, 2010.  Counsel’s motion
advises that he was relying on the original untimely notice of appeal as the
means of perfecting the appeal in the out-of-time appeal granted by the court
of criminal appeals. Additionally, counsel advises that because he was not
appointed until August 20, 2010, filing a notice of appeal within thirty days
after the mandate issued would have been impossible.  
In
granting Garza an out-of-time appeal, the court of criminal appeals expressly
required appellant to take affirmative steps to file a written notice of appeal
in the trial court within thirty days after the mandate issued.  Garza had thirty
days from June 14, 2010, to file a new notice of appeal.  Garza=s notice of appeal was untimely, and accordingly, we lack
jurisdiction over the appeal.  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).  Accordingly, appellant’s
Motion to Find Notice of Appeal Timely Filed or in the alternative Motion to
Extend Time to File Out of Time Notice of Appeal is DENIED.  
The
appeal is DISMISSED FOR WANT OF JURISDICTION.             
 
PER
CURIAM
Do not publish.  See Tex. R. App. P. 47.2(b).
 
Delivered and filed the 
20th day of January, 2011.

 
 
 
 
 

