Dismissed and Opinion Filed December 11, 2017




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-17-01383-CR

                               ISRAEL CORONEL, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                       On Appeal from the 283rd Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F-0960181-T

                             MEMORANDUM OPINION
                 Before Chief Justice Wright, Justice Myers, and Justice Brown
                               Opinion by Chief Justice Wright
       Israel Coronel was charged with aggravated sexual assault of a child younger than

fourteen years of age. After finding appellant guilty, the jury assessed punishment at fifty years

in prison. He filed an appeal with this Court, and we affirmed his conviction. Coronel v. State,

416 S.W.3d 550 (Tex. App.—Dallas 2013, pet. denied). The Texas Court of Criminal Appeals

denied appellant’s petition for discretionary review in December 2013, and our mandate issued

on January 27, 2014.

       On December 1, 2017, appellant filed a “Motion for New Trial Punishment Phase Only”

in this Court along with a request for a court-appointed attorney. In his motion, appellant

contends we have jurisdiction to grant him a new trial as to punishment under article 44.29(b),

(c) of the code of criminal procedure and rule 21.9 of the rules of appellate procedure.
        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 March 26, 2012. Although appellant

had until April 25, 2012 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.

        To the extent appellant intended to file a post-conviction writ of habeas corpus, we have

no jurisdiction in post-conviction habeas corpus proceedings brought under article 11.07 of the

Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (West 2015); In

re McAfee, 53 S.W.3d 715, 717 (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.” Id. at 718.

                                                  –2–
       We dismiss this appeal for lack of jurisdiction.




                                                     /Carolyn Wright/
                                                     CAROLYN WRIGHT
                                                     CHIEF JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
171383F.U05




                                               –3–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

ISRAEL CORONEL, Appellant                          On Appeal from the 283rd Judicial District
                                                   Court, Dallas County, Texas
No. 05-17-01383-CR         V.                      Trial Court Cause No. F09-60181-T.
                                                   Opinion delivered by Chief Justice Wright,
THE STATE OF TEXAS, Appellee                       Justices Myers and Brown participating.

        Based on the Court’s opinion of this date, we DISMISS this appeal for want of
jurisdiction.


Judgment entered December 11, 2017.




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