NUMBER 13-19-00105-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

____________________________________________________________

OSCAR DAVILA RODRIGUEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

____________________________________________________________

On appeal from the 139th District Court 

of Hidalgo County, Texas.

____________________________________________________________

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Benavides and Hinojosa

Memorandum Opinion by Justice Benavides

Appellant, Oscar Davila Rodriguez, attempted to perfect an appeal from a 

conviction for murder. We dismiss the appeal for want of jurisdiction.

Sentence in this matter was imposed on November 26, 2018, counsel filed a 

motion for new trial on December 26, 2018, and notice of appeal was filed on March 5, 

2019. On March 11, 2019, the Clerk of this Court notified appellant that it appeared that 
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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 TEX. R.

APP. P. 26.3.

Appellant timely filed a motion for new trial. Therefore, his notice of appeal was 

due to have been filed on or before February 25, 20191. See TEX. R. APP. P. 26.2(a)(2). 

Although the notice of appeal herein was filed within the fifteen-day time period, no such 

motion for extension of time was filed within the fifteen-day time period. See id.

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 

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. 

 

1 The ninetieth day after November 26, 2018, fell on Sunday, February 24, 2019. As per TEX. R.

APP. P. 4.1(a), the deadline for filing the notice of appeal was extended to Monday, February 25, 2019.
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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) (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. 

GINA M. BENAVIDES,

Justice

Do not publish. 

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

Delivered and filed the

11th day of April, 2019.