Dismiss and Opinion Filed July 3, 2018 

# S

In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-18-00495-CR JOAN NOIS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 5 Dallas County, Texas Trial Court Cause No. F13-58240-L 

### MEMORANDUM OPINION Before Chief Justice Wright, Jus tice Myers, and Justice Stoddar t Opinion by Chief Justice Wright In December 2015, Joan Nois was convicted of aggravated robbery and sentenced to forty years in prison and a $10,000 fine. He appealed his conviction ; however, we dismissed his appeal for want of jurisdiction because his notice of appeal was untim ely. Nois v. State , No. 05–16– 00132–CR, 2016 WL 1057014, at *1 (Tex. App.—Dallas, March 17, 2 016) (mem. op., not designated for publication). Appe llant then filed an applicati on for writ of habeas corpus, contending he was denied his ri ght to appeal because “although trial counsel advised the trial court of Applicant’s desire to appeal , appellate counsel was not appo inted until the time for filing notice of appeal had passed.” Ex parte Nois , No. WR-87,704-01, 2017 WL 6349727, at *1 (Tex. Crim. App. Dec. 13, 2017) (per curiam) ( not designated for publicatio n).–2– The Texas Court of Criminal Appeals found appellant was entitle d to the opportunity to file an out-of-time appeal and or dered him “returned to that ti me at which he may give a written notice of appeal so that he may then, with the aid of counsel, obtain a meaningful appeal.” Id . The court further ordered that, “within ten days of the issuance of this opinion,” the trial court should determine whether appellant was indigent, wished to be represen ted by counsel, and was entitled to counsel on direct appeal . The court concluded: All time limits shall be calculated as if the sentence had been imposed on the date on which the mandate of this Cou rt issues. We hold that, should Applicant desire to prosecute an appeal, he must ta ke affirmative steps to file a w ritten notice of appeal in the trial court within 30 days after the mandate of this Court issu es. Id . The opinion issued December 13, 2017; the mandate issued Ja nuary 8, 2018. The record contains appellant’s p ro se motion for new trial, da ted April 7, 2018 and filed April 17, 2018 in the trial court, in which he states: “THE TEX AS COURT OF CRIMINAL
APPEALS GRANTED AN OUT OF TIME APP EAL IN THIS CAUSE ON January 8th 2018.
SEE CCA WRIT NO. W1358240-C. THERE FORE THIS MOTION FOR A NEW TR IAL IS RIPE FOR REVIEW.” The record also contains, among other docume nts, his April 30, 2018 notice of appeal filed in the trial court and the trial court’s April 20, 2018 appointment of counsel. After reviewing these documents, we had concerns regarding our jurisdiction over the appeal. Specifically, it appeared appellan t’s notice of appeal was agai n untimely filed. On May 30, 2018, we sent a letter, asking appellant and the State to brief us on the issue. In response, appellant filed a June 12, 2018 motion for extens ion of time to file his notice of appeal, along with an affidavit signed by appellant in which he declares under penalty of perju ry that he did not receive a “copy or notice of [the Texas Court of Criminal Appeals’] Opinion and the deadlines” until June 7, 2018. To date, the State has not responded. “Jurisdiction concerns the power of a court to hear and determ ine a case.” Olivo v. State , 918 S.W.2d 519, 522 (Tex. Crim. A pp. 1996). The jurisdiction o f an appellate court must be–3– legally invoked, and, if it is n ot, the power of the court to a ct is as absent as if it did not exist. See
id . at 523. A timely notice of appeal is necessary to invoke an appellate court’s jurisdiction. Id . at 522 (citing Rodarte v. State , 860 S.W.2d 108, 110 (Tex. Crim. App. 1993)). When the Texas Court of Criminal Appeals granted appellant relief, under the p lain language of that court’s opinion, the trial court was orde red to determine whether appel lant was entitled to counsel and, if so, appoint counsel on or before December 23, 2017. Ex parte Nois , 2017 WL 6349727, at *1. When the Texas Court of Criminal Appeals issued its mandate on January 8, 2018, appellant was restored “to the position he occ upied immediately after the tri al court signed the judgment of conviction” and had thirty days to take “affirmative steps” to pursue an appeal. Id . In other words, appellant had until February 7, 2018 to file either a motion fo r new trial or a notice of appeal. See
Mestas v. State  ̧ 214 S.W.3d 1, 4 (Tex. Crim. App. 2007) (holding that “the lan guage used in our opinion should be construed broadly enough to give effect to th e Rules of Appellate Procedure that cover unforeseen situations that may arise,” including fil ing a motion for new trial). Presumably, appellant could have also filed a motion to extend time to file his notice of appeal provided the motion was filed on or before February 22, 2018. See T EX
. R. A PP
. P. 26.3 (appellate court may extend time to file notice of appeal if, within 15 da ys after deadline for filing notice of appeal, appellant files notice of appeal in trial court and ext ension motion with appellate court);
see also Mestas , 214 S.W.3d at 4. Here, appellant had until February 7, 2018 to file either a mo tion for new trial or his notice of appeal. See T EX
. R. A PP
. P. 21.4, 26.2. Neither was timely filed. Under these circumstanc es, we can take no action other tha n dismissing this appeal for wan t of jurisdiction.–4– We dismiss this appeal.

Do Not Publish T EX
. R. A PP
. P. 47.2(b) 180495F.U05 /Carolyn Wright/ CAROLYN WRIGHT CHIEF JUSTICE–5– 

# S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JOAN NOIS, Appellant
No. 05-18-00495-CR V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 5, Dallas County, Texas Trial Court Cause No. F13-58240-L. Opinion delivered by Chief Justice Wright, Justices Myers and Stodd art participating. Based on the Court’s opinion of this date, we DISMISS this appeal for want of jurisdiction.
Judgment entered July 3, 2018.