### NUMBER 13 - 18 - 00 317 - CR 

## COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

____________________________________________________________ DAVID ALLEN SCHWAB , Appellant ,
v. THE STATE OF TEXAS, Appellee

.

____________________________________________________________

On a ppeal from the 377 th District Court of Victoria County, Texas.

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## 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). Absent2

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 th at 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 appeal able order. T EX

. R. A PP

. 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 T EX

. R. A PP

. 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 T EX

. C ODE C RIM

. P ROC

. A NN . art. 11.07, § 3(a) (West, Westlaw through 2017 1st C.S.); see also E x parte Garcia , 988 S.W.2d 240 (Tex. Crim. App. 1999). The appeal is DISMISSED FOR WANT OF JURISDICTION. A ll pending motions are likewise dismissed.

GINA M. BENAVIDES , Justice
Do not publish. S ee T EX

. R. A PP

. P . 47.2(b).
D elivered a nd filed the 29th day of August, 2018

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