Opinion issued April 1, 2025
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-25-00099-CR ——————————— ANDREW CROSS A/K/A ANDREW JOSEPH CROSS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 461st District Court Brazoria County, Texas Trial Court Case No. 100160-CR
MEMORANDUM OPINION
Appellant, Andrew Cross, also known as Andrew Joseph Cross, was indicted
for the felony offense of possession of a controlled substance.1 Pursuant to the Texas
1 See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a) (establishing possession of a controlled substance as “an offense if the person knowingly or intentionally possesses a controlled substance” without a “valid prescription or order of a Penal Code, “[a]n individual adjudged guilty of a felony offense of the second degree
shall be punished by imprisonment . . . for any term of not more than 20 years or less
than 2 years.”2
In accordance with a plea agreement, the State agreed, in exchange for
appellant’s voluntary and intentional guilty plea to the second-degree felony offense
of possession of a controlled substance, to make a sentencing recommendation of
six years’ confinement, with a credit of 264 days for time served, and a 180-day
driver’s license suspension. Also, as a part of the plea agreement, the State agreed
to abandon two enhancement paragraphs alleged in the indictment.
In accordance with the plea agreement, the trial court found appellant guilty
and accepted the punishment recommendation agreed to by appellant and the State
as a part of the plea bargain. On August 15, 2024, the trial court imposed appellant’s
sentence in open court, accepting the State’s sentencing recommendation, setting his
punishment at six years’ confinement, with a credit of 264 days for time served, and
a 180-day driver’s license suspension. On February 10, 2025, appellant, acting pro
se, filed a notice of appeal from the trial court’s judgment.
We dismiss the appeal for lack of jurisdiction.
practitioner acting in the course of professional practice”), (d) (“An offense under [s]ubsection (a) is a felony of the second degree if the amount of the controlled substance is, by aggregate weight . . . four grams or more but less than 200 grams.”). 2 See TEX. PENAL CODE ANN. § 12.33(a).
2 “Courts always have jurisdiction to determine their own jurisdiction.” Harrell
v. State, 286 S.W.3d 315, 317 (Tex. 2009) (internal quotations omitted). Criminal
defendants have a statutory right to appeal their conviction. See TEX. CODE CRIM.
PROC. ANN. art. 44.02; Carson v. State, 559 S.W.3d 489, 492 (Tex. Crim. App.
2018). However, when a trial court enters a judgment of guilt, it must certify
whether the defendant has a right of appeal. See TEX. R. APP. P. 25.2(a)(2). Texas
Rule of Appellate Procedure 25.2(a) states that:
In a plea bargain case—that is, a case in which a defendant’s plea was guilty . . . and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant—a defendant may appeal only: (A) those matters that were raised by written motion filed and ruled on before trial, (B) after getting the trial court’s permission to appeal, or (C) where the specific appeal is expressly authorized by statute.
TEX. R. APP. P. 25.2(a)(2).
Accordingly, in a plea-bargain case, a defendant may only appeal those
matters that were raised by written motion filed and ruled on before trial or after
getting the trial court’s permission to appeal. Id.; see also TEX. CODE CRIM. PROC.
ANN. art. 44.02. An appeal must be dismissed if a certification showing that a
defendant has the right of appeal has not been made part of the record. See TEX. R.
APP. P. 25.2(d); see also Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App.
2005).
3 The clerk’s record in this case included a certification of appellant’s right of
appeal stating that this was “a plea-bargain case, and the [appellant] has NO right of
appeal,” and further indicating that appellant “waived the right of appeal.” The
clerk’s record in this case also included the plea waivers and plea terms, confirming
that appellant agreed to plead guilty to the offense of possession of a controlled
substance in exchange for the State’s agreements: (1) to make a punishment
recommendation of six years’ confinement, with a credit of 264 days for time served,
and a 180-day driver’s license suspension and (2) to abandon two enhancement
paragraphs alleged in the indictment. The appellate record also includes appellant’s
plea admonitions, notifying appellant that where his guilty plea is “voluntarily and
understandingly entered with a plea bargain agreement and the punishment assessed
does not exceed the agreement between [appellant] and [the State], the [trial court]
must give permission before [appellant] can appeal on any matter in the case except
for those matters raised by written motion filed and ruled on prior to trial.” There is
no indication in the appellate record of any pre-trial motions ruled on by the trial
court, nor that the trial court granted appellant permission to appeal.
The appellate record supports the trial court’s certification. Because appellant
has no right of appeal, we must dismiss his appeal. See Chavez v. State, 183 S.W.3d
675, 680 (Tex. Crim. App. 2006) (“A court of appeals, while having jurisdiction to
ascertain whether an appellant who plea-bargained is permitted to appeal by [Texas
4 Rule of Appellate Procedure] 25.2(a)(2), must dismiss a prohibited appeal without
further action, regardless of the basis for the appeal.”).
Additionally, the appellate record indicates that appellant has failed to timely
file his notice of appeal. The trial court’s sentence was imposed in open court on
August 15, 2024. Accordingly, any notice of appeal was due to be filed with the
trial court within thirty days after the entry of the final judgment, on or before
September 16, 2024. See TEX. R. APP. P. 26.2(a)(1). Appellant’s notice of appeal
was untimely filed on February 10, 2025.
A timely notice of appeal is necessary to invoke an appellate court’s
jurisdiction. See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); Lair
v. State, 321 S.W.3d 158, 159 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). If
a notice of appeal is not timely filed, the appellate court lacks jurisdiction to address
the merits of the case and can take no action other than to dismiss the appeal. See
Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998).
Notably however, the Texas Rules of Appellate Procedure allow for an
extension of time to file a notice of appeal where the appellant, within fifteen days
of the deadline to file the notice of appeal: (a) files the notice of appeal in the trial
court and (b) files a motion for extension of time to file a notice of appeal, complying
with Texas Rule of Appellate Procedure 10.5(b), with the appellate court. See TEX.
R. APP. P. 26.3.
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Opinion issued April 1, 2025
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-25-00099-CR ——————————— ANDREW CROSS A/K/A ANDREW JOSEPH CROSS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 461st District Court Brazoria County, Texas Trial Court Case No. 100160-CR
MEMORANDUM OPINION
Appellant, Andrew Cross, also known as Andrew Joseph Cross, was indicted
for the felony offense of possession of a controlled substance.1 Pursuant to the Texas
1 See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a) (establishing possession of a controlled substance as “an offense if the person knowingly or intentionally possesses a controlled substance” without a “valid prescription or order of a Penal Code, “[a]n individual adjudged guilty of a felony offense of the second degree
shall be punished by imprisonment . . . for any term of not more than 20 years or less
than 2 years.”2
In accordance with a plea agreement, the State agreed, in exchange for
appellant’s voluntary and intentional guilty plea to the second-degree felony offense
of possession of a controlled substance, to make a sentencing recommendation of
six years’ confinement, with a credit of 264 days for time served, and a 180-day
driver’s license suspension. Also, as a part of the plea agreement, the State agreed
to abandon two enhancement paragraphs alleged in the indictment.
In accordance with the plea agreement, the trial court found appellant guilty
and accepted the punishment recommendation agreed to by appellant and the State
as a part of the plea bargain. On August 15, 2024, the trial court imposed appellant’s
sentence in open court, accepting the State’s sentencing recommendation, setting his
punishment at six years’ confinement, with a credit of 264 days for time served, and
a 180-day driver’s license suspension. On February 10, 2025, appellant, acting pro
se, filed a notice of appeal from the trial court’s judgment.
We dismiss the appeal for lack of jurisdiction.
practitioner acting in the course of professional practice”), (d) (“An offense under [s]ubsection (a) is a felony of the second degree if the amount of the controlled substance is, by aggregate weight . . . four grams or more but less than 200 grams.”). 2 See TEX. PENAL CODE ANN. § 12.33(a).
2 “Courts always have jurisdiction to determine their own jurisdiction.” Harrell
v. State, 286 S.W.3d 315, 317 (Tex. 2009) (internal quotations omitted). Criminal
defendants have a statutory right to appeal their conviction. See TEX. CODE CRIM.
PROC. ANN. art. 44.02; Carson v. State, 559 S.W.3d 489, 492 (Tex. Crim. App.
2018). However, when a trial court enters a judgment of guilt, it must certify
whether the defendant has a right of appeal. See TEX. R. APP. P. 25.2(a)(2). Texas
Rule of Appellate Procedure 25.2(a) states that:
In a plea bargain case—that is, a case in which a defendant’s plea was guilty . . . and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant—a defendant may appeal only: (A) those matters that were raised by written motion filed and ruled on before trial, (B) after getting the trial court’s permission to appeal, or (C) where the specific appeal is expressly authorized by statute.
TEX. R. APP. P. 25.2(a)(2).
Accordingly, in a plea-bargain case, a defendant may only appeal those
matters that were raised by written motion filed and ruled on before trial or after
getting the trial court’s permission to appeal. Id.; see also TEX. CODE CRIM. PROC.
ANN. art. 44.02. An appeal must be dismissed if a certification showing that a
defendant has the right of appeal has not been made part of the record. See TEX. R.
APP. P. 25.2(d); see also Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App.
2005).
3 The clerk’s record in this case included a certification of appellant’s right of
appeal stating that this was “a plea-bargain case, and the [appellant] has NO right of
appeal,” and further indicating that appellant “waived the right of appeal.” The
clerk’s record in this case also included the plea waivers and plea terms, confirming
that appellant agreed to plead guilty to the offense of possession of a controlled
substance in exchange for the State’s agreements: (1) to make a punishment
recommendation of six years’ confinement, with a credit of 264 days for time served,
and a 180-day driver’s license suspension and (2) to abandon two enhancement
paragraphs alleged in the indictment. The appellate record also includes appellant’s
plea admonitions, notifying appellant that where his guilty plea is “voluntarily and
understandingly entered with a plea bargain agreement and the punishment assessed
does not exceed the agreement between [appellant] and [the State], the [trial court]
must give permission before [appellant] can appeal on any matter in the case except
for those matters raised by written motion filed and ruled on prior to trial.” There is
no indication in the appellate record of any pre-trial motions ruled on by the trial
court, nor that the trial court granted appellant permission to appeal.
The appellate record supports the trial court’s certification. Because appellant
has no right of appeal, we must dismiss his appeal. See Chavez v. State, 183 S.W.3d
675, 680 (Tex. Crim. App. 2006) (“A court of appeals, while having jurisdiction to
ascertain whether an appellant who plea-bargained is permitted to appeal by [Texas
4 Rule of Appellate Procedure] 25.2(a)(2), must dismiss a prohibited appeal without
further action, regardless of the basis for the appeal.”).
Additionally, the appellate record indicates that appellant has failed to timely
file his notice of appeal. The trial court’s sentence was imposed in open court on
August 15, 2024. Accordingly, any notice of appeal was due to be filed with the
trial court within thirty days after the entry of the final judgment, on or before
September 16, 2024. See TEX. R. APP. P. 26.2(a)(1). Appellant’s notice of appeal
was untimely filed on February 10, 2025.
A timely notice of appeal is necessary to invoke an appellate court’s
jurisdiction. See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); Lair
v. State, 321 S.W.3d 158, 159 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). If
a notice of appeal is not timely filed, the appellate court lacks jurisdiction to address
the merits of the case and can take no action other than to dismiss the appeal. See
Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998).
Notably however, the Texas Rules of Appellate Procedure allow for an
extension of time to file a notice of appeal where the appellant, within fifteen days
of the deadline to file the notice of appeal: (a) files the notice of appeal in the trial
court and (b) files a motion for extension of time to file a notice of appeal, complying
with Texas Rule of Appellate Procedure 10.5(b), with the appellate court. See TEX.
R. APP. P. 26.3. Provided the extension of time prescribed by the rules, appellant
5 was required to file both his notice of appeal with the trial court and a motion for
extension of time to file a notice of appeal with this Court on or before October 1,
2024.
Appellant’s notice of appeal, filed on February 10, 2025, was not filed within
the extended period provided by Texas Rule of Appellate Procedure 26.3, and the
appellate record reflects that appellant did not file any motion to extend the deadline
for filing a notice of appeal. Accordingly, appellant failed to timely file a notice of
appeal to invoke the jurisdiction of this Court. See TEX. R. APP. P. 26.2, 26.3.
Absent a timely filed notice of appeal, we lack jurisdiction and cannot
consider the merits of appellant’s appeal. See Olivo, 918 S.W.2d at 522; Castillo v.
State, 369 S.W.3d 196, 202 (Tex. Crim. App. 2012) (concluding filing notice of
appeal and motion for extension of time to file notice of appeal one day late was
“enough to deprive the appellate court of jurisdiction”).
Accordingly, we dismiss the appeal for lack of jurisdiction. See TEX. R. APP.
P. 43.2(f). We dismiss any pending motions as moot.
PER CURIAM
Panel consists of Chief Justice Adams and Justices Gunn and Guiney.
Do not publish. TEX. R. APP. P. 47.2(b).