                             NUMBER 13-10-00681-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG
____________________________________________________________

JAMES GUY GARNERS,                                                         Appellant,

                                               v.

THE STATE OF TEXAS,                                 Appellee.
____________________________________________________________

             On appeal from the 329th District Court
                   of Wharton County, Texas.
____________________________________________________________

                       MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Rodriguez and Perkes
                  Memorandum Opinion Per Curiam

       Appellant, James Guy Garners, attempted to perfect an appeal from a conviction

for continuous violence against family and abandoning child without intent to return. We

dismiss the appeal for want of jurisdiction.

       Sentence in this matter was imposed on June 24, 2010. No motion for new trial

was filed. Notice of appeal was filed on December 22, 2010. On December 22, 2010,
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

January 6, 2011, appellant’s counsel responded to the notice by filing a motion for leave

to file notice of appeal. The motion states that counsel for appellant was not notified of

the appointment as counsel for the appeal until sometime in December 2010.

         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 was due to have been filed on or before July 26, 2010.

See TEX. R. APP. P. 26.2(a)(2). Within the fifteen day time period, appellant did not file a

motion for extension of time to file his notice of appeal and did not file his notice of appeal.

         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). “When a

notice of appeal is filed within the fifteen-day period but no timely motion for extension of

time is filed, the appellate court lacks jurisdiction.” Olivo, 918 S.W.2d at 522.     Absent a

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

merits of the appeal in a criminal case 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).

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       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. See TEX. CODE CRIM.

PROC. ANN. art. 11.07, § 3(a) (Vernon 2005); see also Ex parte Garcia, 988 S.W.2d 240

(Tex. Crim. App. 1999).

       Appellant’s motion for leave to file notice of appeal is DENIED. The appeal is

DISMISSED FOR WANT OF JURISDICTION.

                                                  PER CURIAM


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

Delivered and filed the
10th day of February, 2011.




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