NUMBER 13-20-00046-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

JOSE LUIS HERNANDEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

____________________________________________________________

On appeal from the 370th District Court 

of Hidalgo County, Texas.

____________________________________________________________

MEMORANDUM OPINION

Before Justices Benavides, Hinojosa, and Tijerina

Memorandum Opinion by Justice Tijerina

Appellant, Jose Luis Hernandez, proceeding pro se, attempts to appeal from 

judgments issued in trial court cause number CR-1118-13-G in the 370th District Court of 

Hidalgo County, Texas. We dismiss this appeal for lack of jurisdiction.

On March 27, 2014, the trial court sentenced appellant for two counts of attempt 

to commit capital murder of a peace officer and three counts of aggravated kidnapping.
2

Over five years later, on December 27, 2019, appellant filed a notice of appeal of the 

judgements.

On January 22, 2020, the Clerk of this Court notified appellant that it appeared the 

appeal was not timely perfected. Appellant was further informed the appeal would be 

dismissed if the defect was not corrected within ten days from the date of receipt of the 

Court’s directive. Since that correspondence, appellant filed several motions, including a 

motion to extend the deadline. In the motions, appellant generally claims ineffective 

assistance of counsel among other various attacks on the judgment, but he failed to cure 

the defect.

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 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). 

Unless a motion for new trial is 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. R. 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. R. 26.3.
3

Appellant’s notice of appeal, filed more than five years after sentence was 

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

Slaton, 981 S.W.2d at 210. Moreover, jurisdiction to grant post-conviction habeas corpus 

relief in felony cases rests exclusively with the Texas Court of Criminal Appeals. TEX.

CODE CRIM. PROC. ANN. art. 11.07, § 5 (Vernon Supp. 2011); Bd. of Pardons & Paroles 

ex rel. Keene v. Court of Appeals for the Eighth Dist., 910 S.W.2d 481, 483 (Tex. Crim. 

App. 1995); In re McAfee, 53 S.W .3d 715, 717–18 (Tex. App.—Houston [1st Dist.] 2001, 

orig. proceeding).

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 2013 3d C.S.); see also Ex parte 

Garcia, 988 S.W.2d 240, 241 (Tex. Crim. App. 1999) (per curiam). The appeal is

DISMISSED FOR LACK OF JURISDICTION. Accordingly, appellant’s motions for 

extension of time, for counsel, and to remand are hereby DISMISSED AS MOOT.

JAIME TIJERINA

Justice

Do not publish. 

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

Delivered and filed the

3rd day of December, 2020.