Aubrey Russ Hancock v. State

• Court: Court of Appeals of Texas
• Decided: February 12, 2009
• Docket: 14-09-00070-CR
• Status: Published

Opinion

Dismissed and Memorandum Opinion filed February 12, 2009

Dismissed and Memorandum Opinion filed February 12, 2009.

In The

Fourteenth Court of Appeals

____________

NO. 14-09-00070-CR

AUBREY RUSS HANCOCK, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 413th District Court

Johnson County, Texas

Trial Court Cause No.  F42891

M E M O R A N D U M   O P I N I O N

After a guilty plea, appellant was convicted of possession of less than one gram of a controlled substance and was sentenced on October 27, 2008, to confinement for two years in the State Jail Division of the Texas Department of Criminal Justice, probated for five years, and assessed a $750 fine.  No motion for new trial was filed.  Appellant=s notice of appeal was not filed until December 15, 2008. 

A defendant=s notice of appeal must be filed within thirty days after sentence is imposed when the defendant has not filed a motion for new trial.  See Tex. R. App. P. 26.2(a)(1).  A notice of appeal that complies with the requirements of Rule 26 is essential to vest the court of appeals with jurisdiction.  Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998).  If an appeal is not timely perfected, a court of appeals does not obtain jurisdiction to address the merits of the appeal.  Under those circumstances it can take no action other than to dismiss the appeal.  Id.

Appellant filed a motion for extension of time to file his notice of appeal on December 16, 2008.  A court of appeals may grant an extension of time to file a notice of appeal if the notice of appeal and the motion for extension are filed within 15 days after the deadline for filing the notice of appeal.  Tex. R. App. P. 26.3.  Appellant=s notice of appeal was due on or before Wednesday, November 26, 2008.  See Tex. R. App. P. 26.2(a)(1).  Therefore, the notice of appeal and motion for extension of time were due on or before December 11, 2008.  See Tex. R. App. P. 26.3.  Appellant=s motion is untimely.

On December 23, 2008, notice was transmitted to the parties that the appeal would be dismissed unless a response establishing appellate jurisdiction was filed within twenty-one days of the date of the notice.  No response has been filed.

Moreover, the trial court entered a certification of the defendant=s right to appeal in which the court certified that this is a plea bargain case, the defendant has no right of appeal, and the defendant waived any right to appeal.  See Tex. R. App. P. 25.2(a)(2).  The trial court=s certification is included in the record on appeal.  See Tex. R. App. P. 25.2(d).  The record supports the trial court=s certification.  See Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005).

Accordingly, the appeal is ordered dismissed. 

PER CURIAM

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).