### NUMBER 13 - 10 - 00 632 - CR 

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

____________________________________________________________ JERMAINE D. MIDDLETON , Appellant,

v. THE STATE OF TEXAS, Appellee.

____________________________________________________________

On appeal from the 329 th District Court of Wharton County, Texas.

____________________________________________________________



# MEMORANDUM OPINION
Before Justices Garza, Benavides, and Vela Memorandum Opinion Per Curiam Appellant, Jermaine D. Middleton , attempted to perfect an appeal from a conviction for possession of a firearm by a felon . We dismiss the appeal for want of jurisdiction. Sentence in this matter was imposed on September 30, 2010 . No motion for new trial was filed. Notice of appeal was filed on November 15, 2010 . On November 18,2

2010 , the Clerk of this Court notified appellant that it appeared that the appeal was not timely perfected. Appellant was advised t hat the appeal would be dismissed if the defect was not corrected within ten days from the date of receipt of the Court = s directive. On December 2, 2010, the Court received a motion for leave to file notice of appeal. 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

. T EX

. R. A PP

. P . 26.2(a)(1). 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. Although the notice of
ap peal 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.
T his Court's appellate jurisdiction in a criminal case is invoked by a timely filed notice of appeal. O livo v. State , 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). A 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 appeal for want of jurisdiction. Slaton v. State , 981 S.W.2d 208, 210 (T ex. Crim. App. 1998). Accordingly, a ppellant’s motion for leave to file notice of appeal is DENIED. 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

.3

P ROC

. A NN . 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. T EX

. R. A PP

. P . 47.2(b).
D elivered and filed the 13th day of January , 20 1 1

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