David Amaya Velasquez v. State

Opinion

Opinion issued August 20, 2019

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-19-00135-CR ——————————— DAVID AMAYA VELASQUEZ, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 9 Harris County, Texas Trial Court Case No. 2125491

MEMORANDUM OPINION

Appellant, David Amaya Velasquez, pleaded guilty to the misdemeanor

offense of assault on a family member. TEX. PENAL CODE § 22.01. In accordance

with the terms of a plea-bargain agreement, the trial court signed a judgment of conviction imposing a sentence of thirty days’ confinement in the Harris County Jail

with credit for time served. Velasquez filed a notice of appeal.

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. TEX. CODE CRIM. PROC. art. 44.02; TEX. R. APP. P. 25.2(a)(2).

An appeal must be dismissed if a certification showing that the defendant has the

right of appeal has not been made part of the record. TEX. R. APP. P. 25.2(d). Here,

the trial court’s certification is included in the record on appeal. See id. The trial

court’s certification states that this is a plea bargain case and that the defendant has

no right of appeal. See TEX. R. APP. P. 25.2(a)(2).

We also lack jurisdiction over this appeal because the notice of appeal was

untimely filed. The trial court’s judgment was signed on January 24, 2017. Appellant

did not file his notice of appeal until February 11, 2019.

In a criminal case, the notice of appeal must be filed within 30 days of the date

sentence is imposed. See TEX. R. APP. P. 26.2(a). An extension of time may be

granted if the defendant files the notice of appeal and a motion for extension within

fifteen days after the deadline for filing the notice of appeal. See TEX. R. APP. P.

26.3. Appellant did not file his notice of appeal until more than two years after

sentence was imposed. Absent a timely-filed notice of appeal, this Court lacks

jurisdiction. See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996).

2 Because Velasquez 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.”). And, because Velasquez filed

an untimely notice of appeal, we lack jurisdiction over this appeal and must dismiss.

See Olivo, 918 S.W.2d at 526.

Accordingly, we dismiss the appeal. We dismiss any pending motions as

moot.

PER CURIAM Panel consists of Justices Kelly, Hightower, and Countiss.

Do not publish.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