David Ross Sterling, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: March 14, 2008
• Docket: 06-08-00035-CR
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-08-00035-CR ______________________________

DAVID ROSS STERLING, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 115th Judicial District Court Upshur County, Texas Trial Court No. 14,483

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Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

David Ross Sterling, Jr., attempts to appeal his conviction for possession of a controlled substance (cocaine) with intent to deliver in a drug-free zone. Sterling entered into a plea agreement and was sentenced in accordance therewith to seventeen years' imprisonment.

Sterling's sentence was imposed January 7, 2008. His notice of appeal was filed February 28, 2008. We received the clerk's record March 5, 2008. The issue before us is whether Sterling timely filed his notice of appeal. We conclude he did not and dismiss the attempted appeal for want of jurisdiction.

A timely notice of appeal is necessary to invoke this Court's jurisdiction. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Rule 26.2(a) prescribes the time period in which a notice of appeal must be filed by a defendant in order to perfect appeal in a criminal case. 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 sentencing if the defendant timely files a motion for new trial. Tex. R. App. P. 26.2(a); Olivo, 918 S.W.2d at 522. The record does not contain any motion for new trial. The last date Sterling could timely file his notice of appeal was February 6, 2008, thirty days after the sentence was imposed in open court. See Tex. R. App. P. 26.2(a)(1). Further, no motion for extension of time was filed in this Court within fifteen days of the last day allowed for filing the notice of appeal.

In addition to the notice of appeal being untimely filed, the record contains a certification from the trial court that this "is a plea-bargain case, and the defendant has NO right of appeal." See Tex. R. App. P. 25.2.

Unless a certification, showing that a defendant has the right of appeal, is in the record, we must dismiss the appeal. See Tex. R. App. P. 25.2(d). Because the trial court's certification affirmatively shows Sterling has no right of appeal, and because the record before us does not reflect that the certification is incorrect, see Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005), we must dismiss the appeal.

Sterling has failed to perfect his appeal. Accordingly, we dismiss the appeal for want of jurisdiction.

Josh R. Morriss, III

Chief Justice

Date Submitted: March 13, 2008

Date Decided: March 14, 2008

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