Background
Jonathan Urquidi Bello sought to appeal the trial court’s judgment revoking his community supervision for the third-degree felony offense of evading arrest or detention with a vehicle. The trial court imposed a ten-year sentence, and Bello filed a pro se notice of appeal 104 days after sentencing.
After docketing the appeal, the Eleventh Court of Appeals notified Bello that his notice appeared untimely and asked him to identify grounds for continuing the appeal. Bello responded that his court-appointed attorney, Kevin Acker, had represented him at the hearing and was handling his appeal. Although Bello stated that his attorney had filed an appeal on the day of sentencing, the appellate court found no notice of appeal or motion for new trial filed by counsel, who did not respond to the court’s two inquiries.
The Court’s Holding
The court dismissed the appeal for want of jurisdiction. Under the Texas Rules of Appellate Procedure, Bello was required to file his notice of appeal within 30 days after sentence was imposed in open court, or within 90 days if he timely filed a motion for new trial. Because no motion for new trial appeared in the record and Bello filed his notice 104 days after sentencing, the notice was untimely.
The court explained that it lacked authority to extend the deadline for perfecting the appeal and therefore had no discretion to hear the case. It noted, however, that Bello might be able to obtain an out-of-time appeal by filing a postconviction application for a writ of habeas corpus with the Texas Court of Criminal Appeals under Article 11.07 of the Texas Code of Criminal Procedure.
Key Takeaways
- A Texas criminal defendant generally must file a notice of appeal within 30 days after sentence is imposed in open court.
- A timely motion for new trial extends the notice-of-appeal deadline to 90 days, but no such motion appeared to have been filed for Bello.
- An appellate court cannot hear an untimely appeal when its jurisdiction was not properly invoked, though postconviction habeas relief may provide a route to an out-of-time appeal.
Why It Matters
The decision underscores that timely filing a notice of appeal is jurisdictional in Texas criminal cases. A defendant’s belief that counsel filed an appeal does not itself perfect the appeal when the appellate record contains no timely notice.
Defendants who lose their direct appeal because counsel allegedly failed to file a timely notice may need to pursue an out-of-time appeal through postconviction habeas proceedings rather than ask the intermediate appellate court to extend the jurisdictional deadline.