Opinion issued January 12, 2017




                                      In The

                               Court of Appeals
                                     For The

                           First District of Texas
                              ————————————
                               NO. 01-16-00903-CR
                             ———————————
          EX PARTE RICHARD LAWRENCE NUGENT, Appellant



                      On Appeal from the 228th District Court
                               Harris County, Texas
                          Trial Court Case No. 1015171A


                           MEMORANDUM OPINION

      Appellant, Richard Lawrence Nugent, has filed a “Motion for Out of Time

Appeal” regarding his untimely notice of appeal from the trial court’s denial of his

article 11.072 application for a writ of habeas corpus. We deny the motion and

dismiss the appeal.
                                     Background

      On April 11, 2005, Nugent pleaded guilty to the first-degree felony offense of

aggregate theft in an amount in excess of $200,000.00 without an agreed

recommendation as to punishment. See TEX. PENAL CODE ANN. §§ 31.03 (West

Supp. 2016); 31.09 (West 2011). On June 24, 2005, the trial court sentenced Nugent

to ten years’ confinement but suspended the sentence and placed him on ten years’

community supervision. The court further ordered that Nugent pay $248,621.00 and

relinquish any interest in certain real property as restitution.

      On April 8, 2015, through new counsel, Nugent filed an application for writ

of habeas corpus pursuant to Article 11.072 of the Texas Code of Criminal Procedure

claiming ineffective assistance of counsel, involuntariness of his plea, and newly

discovered evidence establishing innocence. At the conclusion of the May 31, 2016

hearing on the application, the trial court denied the application in open court. The

trial court subsequently issued signed findings of fact and conclusions of law on July

25, 2016.

      On November 2, 2016, Nugent’s counsel filed a notice of appeal from the

denial of his habeas application. Included with the notice of appeal was an undated

affidavit of Edwin Dee McWilliams, one of the attorneys who represented Nugent

in his habeas application. McWilliams stated in his affidavit that a notice of appeal

had not been filed because (1) he mistakenly thought that the notice of appeal was



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due thirty days after the findings of fact and conclusions of law were entered rather

than thirty days after the court ruled on May 31, 2016 and (2) he was unaware that

the trial court signed the findings of fact and conclusions of law on July 25, 2016.

The affidavit concluded by stating that “It has always been Mr. Nugent’s intent to

challenge his conviction and appeal any adverse decision in this case to the furthest

extent. Due to a mistaken view of the law, and lack of notice, a notice of appeal has

not been filed in this case.” On November 18, 2016, Nugent’s counsel filed a

“Motion for Out of Time Appeal” similarly relying upon McWilliams’s affidavit.

                                      Discussion

      In a criminal case, a defendant’s notice of appeal is due within thirty days after

sentence is imposed in open court or the trial court enters an appealable order. See

TEX. R. APP. P. 26.2(a)(1). The deadline to file a notice of appeal is extended to

ninety days after the sentence is imposed if the defendant timely files a motion for

new trial. See TEX. R. APP. P. 26.2(a)(2). The time for filing a notice of appeal may

be further extended if, within fifteen days of deadline for filing the notice of appeal,

appellant files the notice of appeal and a motion complying with Rule 10.5(b). See

TEX. R. APP. P. 26.3.

      An order denying habeas corpus relief under article 11.072 that does not

impose or suspend a sentence is an appealable order. See TEX. CODE CRIM. P. ANN.

art. 11.072, § 8 (West 2015). Therefore, a notice of appeal from such an order must



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be filed within the thirty-day time period specified in rule 26.2(a)(1). See TEX. R.

APP. 26.2(a)(1); Ex Parte Chavez, No. 13–16–00331–CR, 2016 WL 4040252, at *1

(Tex. App.—Corpus Christ–Edinburg, July 28, 2016, no pet.) (mem. op., not

designated for publication); Ex parte Delgado, 214 S.W.3d 56, 58 (Tex. App.—El

Paso 2006, pet. ref’d); see also Fowler v. State, No. 01–12–00300–CR, 2013 WL
653276, at *1 (Tex. App.—Houston [1st Dist.] Feb. 21, 2013, no pet.) (mem. op.,

not designated for publication); Mireles v. State, No. 02–14–00228–CR, 2014 WL
6601964, at *1 (Tex. App.—Fort Worth Nov. 20, 2014, no pet.) (mem. op., not

designated for publication).

      Nugent’s counsel asserts that the thirty-day deadline for filing a notice of

appeal began to run when the trial court denied the habeas application in open court

on May 31, 2016. Although the trial court denied the habeas application in open

court on May 31, 2016, we note that its written order containing findings of fact and

conclusions of law was not issued until July 25, 2016. See TEX. CODE CRIM. PROC.

ANN. art. 11.072 § 7(A) (“the court shall enter a written order including findings of

fact and conclusions of law.”); Ex Parte Martinez, No. PD–1801–10, 2011 WL
2582199, at *1 (Tex. Crim. App. June 29, 2011) (“For the purposes of the appellate

timetable, a trial court ‘enters’ an order when it signs the order.”) (not designated for

publication).




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      Assuming that the deadline to file a notice of appeal did not run until the later

date in which the trial court issued its written order, Nugent’s notice of appeal was

due by no later than August 24, 2016 (thirty days from July 25, 2016). A motion to

extend the deadline was not filed in this case. Accordingly, Nugent’s November 2,

2016 notice of appeal, filed one hundred days after the trial court issued its written

order on July 25, 2016, was untimely. See TEX. R. APP. P. 26.2.

      If an appeal is not timely perfected, a court of appeals does not obtain

jurisdiction to address the merits of the appeal and can take no action other than to

dismiss the appeal. See Castillo v. State, 369 S.W.3d 196, 198 (Tex. Crim. App.

2012); Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998); Olivo v. State,

918 S.W.2d 519, 523 (Tex. Crim. App. 1996). Nugent acknowledges that his notice

of appeal was untimely and requests that we grant an “out of time appeal.” But this

Court has no authority to allow the late filing of a notice of appeal except as provided

by Rule 26.3. See Olivo, 918 S.W.2d at 522.

      Moreover, Nugent’s counsel requests an out of time appeal on the basis that

they were unaware of the trial court’s July 25, 2016 written order. Although Texas

Rule of Appellate Procedure 4.2 and Texas Rule of Civil Procedure 306a(4) allow

for additional time to file a notice of appeal when a party does not receive timely

notice of a judgment in a civil case, there is no comparable rule extending the time

in criminal cases. See Carrillo v. State, No. 01–11–00495–CR, 2011 WL 4507218,



                                           5
at *1 (Tex. App.—Houston [1st Dist.] Sept. 29, 2011) (“Rule 4.2 of the Texas Rules

of Appellate Procedure allows for additional time to file a notice of appeal when a

party does not receive timely notice of a judgment in a civil case, but there is no

comparable rule for criminal cases.”) (mem. op., not designated for publication);

Dewalt v. State, 417 S.W.3d 678, 689–90 (Tex. App.—Austin 2013, pet. ref’d)

(“Although [no notice of the appealable order] might excuse an untimely notice of

appeal in a civil case, ‘[n]o comparable rule exists for criminal cases,’ and Texas

courts have routinely held, as we must do here, that being unaware of an appealable

order or judgment does not excuse an untimely notice of appeal.”); Pope v. State,

No. 05–10–01455–CR, 2011 WL 924477, at *2 (Tex. App.—Dallas Mar. 18, 2011,

no pet.) (same) (mem. op., not designated for publication).

                                    Conclusion

      Accordingly, we deny the motion for an out of time appeal and dismiss this

appeal for want of jurisdiction. See TEX. R. APP. P. 43.2(f). Any other pending

motions are dismissed as moot.

                                 PER CURIAM
Panel consists of Chief Justice Radack and Justices Jennings and Bland.

Do not publish. TEX. R. APP. P. 47.2(b).




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