David Amaya Velasquez v. State

• Court: Court of Appeals of Texas
• Decided: March 14, 2019
• Docket: 01-19-00111-CR
• Status: Published

Opinion

Opinion issued March 14, 2019

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-19-00111-CR ——————————— DAVID AMAYA VELASQUEZ, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court Harris County, Texas Trial Court Case No. 1572788

MEMORANDUM OPINION

Pursuant to an agreement with the State, appellant, David Amaya Velasquez,

pleaded guilty to the reduced misdemeanor offense of assault of a family member.1

1 See TEX. PENAL CODE ANN. § 22.01(a)(1), (b). The trial court found appellant guilty, assessed his punishment at confinement for

135 days, and certified that this case “is a plea-bargain case and [appellant] has NO

right of appeal.” Appellant has filed a pro se notice of appeal.

We dismiss the appeal for lack of jurisdiction.

We cannot exercise jurisdiction over an appeal without a timely filed notice

of appeal. See TEX. R. APP. P. 26.2(a); see also Castillo v. State, 369 S.W.3d 196,

198 (Tex. Crim. App. 2012); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App.

1996). A defendant’s notice of appeal is timely if filed within thirty days after the

date sentence is imposed or suspended in open court or within ninety days after that

date if the defendant timely files a motion for new trial. TEX. R. APP. P. 26.2(a); see

Bayless v. State, 91 S.W.3d 801, 806 (Tex. Crim. App. 2002); Lair v. State, 321

S.W.3d 158, 159 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). And, this Court

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

Texas Rule of Appellate Procedure 26.3. See TEX. R. APP. P. 26.3; Olivo, 918 S.W.2d

at 522.

Here, the trial court imposed sentence and signed the judgment of conviction

on February 23, 2018. The clerk’s record filed in this Court does not reflect that

appellant timely filed a motion for new trial. See TEX. R. APP. P. 21.4(a).

Appellant’s notice of appeal, therefore, was due to be filed no later than March 26,

2018. See TEX. R. APP. P. 4.1, 26.2(a)(1); Olivo, 918 S.W.2d at 522. His notice of

2 appeal, filed on February 11, 2019, was untimely to perfect an appeal of the February

23, 2018 judgment of conviction, and we have no basis for jurisdiction over the

appeal. See Olivo, 918 S.W.2d at 522; Lair, 321 S.W.3d at 159.

Moreover, in a plea-bargained case, a defendant may appeal only those

matters that were raised by written motion filed and ruled on before trial or after

obtaining the trial court’s permission to appeal. TEX. CODE CRIM. PROC. ANN. art.

44.02; TEX. R. APP. P. 25.2(a)(2). The trial court’s certification is included in the

record and states that the case is a plea-bargained case and appellant has no right of

appeal. See TEX. R. APP. P. 25.2(a)(2). The record supports the trial court’s

certification. See Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005).

Because appellant has no right of appeal, we must dismiss this 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 Rule 25.2(a)(2), must dismiss a prohibited appeal without

further action, regardless of the basis for the appeal.”).

Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R. APP.

P. 43.2(f). We dismiss all pending motions as moot.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Goodman and Countiss. Do not publish. TEX. R. APP. P. 47.2(b).