Elifonso Lopez v. State

• Court: Court of Appeals of Texas
• Decided: April 21, 2016
• Docket: 13-16-00164-CR
• Status: Published

Opinion

NUMBER 13-16-00164-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ELIFONSO LOPEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 138th District Court of Cameron County, Texas.

MEMORANDUM OPINION Before Justices Benavides, Perkes, and Longoria Memorandum Opinion Per Curiam

Appellant, Elifonso Lopez, attempts to appeal his conviction for driving while

intoxicated. We dismiss the appeal for want of jurisdiction.

This Court's appellate jurisdiction in a criminal case is invoked by a timely filed

notice of appeal. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Absent a timely filed notice of appeal, a court of appeals does not have jurisdiction to address the

merits of the appeal and can take no action other than to dismiss the appeal for want of

jurisdiction. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998).

Sentence in this matter was imposed on September 15, 2015. No motion for new

trial was filed. Notice of appeal was filed on March 22, 2016. On March 24, 2016, the

Clerk of this Court notified appellant that it appeared that the appeal was not timely

perfected. Appellant was advised that the appeal would be dismissed if the defect was

not corrected within ten days from the date of receipt of the Court’s directive.

Texas Rule of Appellate Procedure 26.2 provides that an appeal is perfected when

notice of appeal is filed within thirty days after the day sentence is imposed or suspended

in open court unless a motion for new trial is timely filed. TEX. R. APP. P. 26.2(a)(1). The

time within which to file the notice may be enlarged if, within fifteen days after the deadline

for filing the notice, the party files the notice of appeal and a motion complying with Rule

10.5(b) of the Texas Rules of Appellate Procedure. See id. 26.3. Appellant’s notice of

appeal, filed more than six months after sentence was imposed, was untimely, and

accordingly, we lack jurisdiction over the appeal. See Slaton, 981 S.W.2d at 210.

Additionally, the trial court has certified that this “is a plea-bargain case, and the

defendant has NO right of appeal” and “the defendant has waived the right of appeal.”

See TEX. R. APP. P. 25.2(a)(2). On March 28, 2016, this Court notified appellant’s

counsel of the trial court’s certification and ordered counsel to: (1) review the record; (2)

determine whether appellant has a right to appeal; and (3) forward to this Court, by letter,

2 counsel’s findings as to whether appellant has a right to appeal, or, alternatively, advise

this Court as to the existence of any amended certification.

On April 18, 2016, counsel filed a letter brief with this Court. Counsel’s response

does not establish that the certification currently on file with this Court is incorrect or that

appellant otherwise has a right to appeal. Thus, even if appellant had timely perfected

an appeal, his appeal would have been prohibited by Rule 25.2, which provides that an

appellate court must dismiss an appeal without further action when there is no certification

showing that the defendant has the right of appeal. See TEX. R. APP. P. 25.2(d). The

appeal is DISMISSED FOR WANT OF JURISDICTION.

PER CURIAM

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

Delivered and filed the 21st day of April, 2016.