NUMBER 13-09-00066-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

______________________________________________________________

ALDO MARTIN NAVA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

_____________________________________________________________

On appeal from the County Court at Law No. 2

of Hidalgo County, Texas.

______________________________________________________________

MEMORANDUM OPINION

Before Justices Yañez, Rodriguez, and Benavides

Memorandum Opinion Per Curiam

Appellant, Aldo Martin Nava, attempted to perfect an appeal from a conviction for

assault. We dismiss the appeal for want of jurisdiction.

Sentence in this matter was imposed on October 23, 2008. Counsel filed a motion

for new trial, and notice of appeal was filed on January 28, 2009. On February 11, 2009,
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the Clerk of this Court notified appellant that it appeared that the appeal was not timely

perfected and 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. Appellant has not filed a response

to the Court’s directive. 

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). Where

a timely motion for new trial has been filed, notice of appeal shall be filed within ninety days

after the sentence is imposed or suspended in open court. TEX.R.APP.P. 26.2(a)(2). 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 timely filed a motion for new trial. Therefore, his notice of appeal was due

to have been filed on or before January 21, 2009. See TEX. R. APP. P. 26.2(a)(2).

Although the notice of appeal herein was filed within the 15-day time period for filing a

motion for extension of time to file notice of appeal, no such motion for extension of time

was filed. See id. 26.3. 

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
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appeal for want of jurisdiction. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App.

1998). 

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).

The appeal is DISMISSED FOR WANT OF JURISDICTION. 

PER CURIAM

Do not publish. 

TEX. R. APP. P. 47.2(b).

Memorandum Opinion delivered and

filed this the 4th day of June, 2009.