NUMBER 13-18-00317-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

____________________________________________________________

DAVID ALLEN SCHWAB, Appellant,

v.

THE STATE OF TEXAS, Appellee. 

____________________________________________________________

On appeal from the 377th District Court 

of Victoria County, Texas.

____________________________________________________________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Benavides

Memorandum Opinion by Justice Benavides

Appellant, David Allen Schwab, attempted to perfect an appeal from a conviction 

for aggravated assault. We dismiss the appeal for want of jurisdiction.

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). Absent 
2

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). 

The trial court imposed sentence in this matter on December 8, 2017. Appellant 

filed his notice of appeal on June 21, 2018. On June 21, 2018, 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. 1 Appellant requested and this Court granted an 

extension to file a response until August 13, 2018. Appellant has not filed a response to 

the Court’s directive. 

Unless a motion for new trial has been timely filed, a notice of appeal must be filed 

within thirty days after the day sentence is imposed or suspended in open court, or after 

the day the trial court enters an appealable order. TEX. R. APP. P. 26.2(a)(1). Where a 

timely motion for new trial has been filed, the notice of appeal must be filed within ninety 

days after the day sentence is imposed or suspended in open court. See id. 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.

 

1 The trial court’s certification of the defendant’s right to appeal shows this is a plea bargain case 

and the defendant has no right of appeal. See TEX. R. APP. P. 25.2(a)(2). 
3

Appellant’s notice of appeal, filed more than six months after sentence was 

imposed, was untimely, and accordingly, we lack jurisdiction over the appeal. See 

Slaton, 981 S.W.2d at 210. 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) (West, Westlaw through 2017 1st C.S.); see 

also Ex parte Garcia, 988 S.W.2d 240 (Tex. Crim. App. 1999).

The appeal is DISMISSED FOR WANT OF JURISDICTION. All pending motions 

are likewise dismissed.

GINA M. BENAVIDES,

Justice

Do not publish.

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

Delivered and filed the

29th day of August, 2018.