Elias Martinez Vargas v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 26, 2023
• Docket: 10-23-00183-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-23-00183-CR

ELIAS MARTINEZ-VARGAS, Appellant v.

THE STATE OF TEXAS, Appellee

From the 19th District Court McLennan County, Texas Trial Court No. 2020-700-C1

MEMORANDUM OPINION

Elias Martinez-Vargas appeals his conviction of three counts of Aggravated Sexual

Assault of a Child. The judgments were signed on June 2, 2022. Martinez-Vargas’ notice

of appeal was due July 5, 2022. See TEX. R. APP. P. 26.2(a)(1). It's filing on June 21, 2023,

is untimely.

Martinez-Vargas also presented a motion for an extension of time to file his notice

of appeal. It is untimely as well. See id. 26.3. When both the notice of appeal and the

motion for extension of time to file a notice of appeal are untimely, we have no jurisdiction to grant an out of time appeal; that authority belongs exclusively to the Court

of Criminal Appeals through a writ of habeas corpus. See Parr v. State, 206 S.W.3d 143,

144-45 (Tex. App.—Waco 2006, no pet.).

We have no jurisdiction of an untimely appeal, and this appeal must be dismissed.

See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996) (no appellate jurisdiction

where notice of appeal is untimely). Accordingly, this appeal is dismissed.1

Martinez-Vargas’ motion for leave and motion for extension of time are also

dismissed.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Johnson, and Justice Smith Appeal dismissed Motions dismissed Opinion delivered and filed July 26, 2023 Do not publish [CR25]

1 Even if Martinez-Vargas’ notice of appeal was timely, this appeal would still be dismissed because Martinez-Vargas pled guilty pursuant to a plea bargain and the trial court's certificate of right of appeal indicates Martinez-Vargas has no right to appeal and has waived his right to appeal. See TEX. R. APP. P. 25.2(d) ("The appeal must be dismissed if a certification that shows the defendant has the right of appeal has not been made part of the record under these rules."); Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006) (plea bargain); Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003) (waiver of appeal).

Martinez-Vargas v. State Page 2