Elmer Larez-Rivero v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 21, 2022
• Docket: 02-21-00200-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-21-00200-CR ___________________________

ELMER LAREZ-RIVERO, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 462nd District Court Denton County, Texas Trial Court No. F21-2054-462

Before Womack, Wallach, and Walker, JJ. Memorandum Opinion by Justice Womack MEMORANDUM OPINION

Appellant Elmer Larez-Rivero attempts to appeal from his October 15, 2021

conviction for indecency with a child by contact. See Tex. Penal Code Ann. § 21.11.

Because Larez-Rivero did not file a motion for new trial, his notice of appeal was due

no later than November 15, 2021. See Tex. R. App. P. 26.2(a)(1). Larez-Rivero’s

notice of appeal, however, was postmarked on November 18, 2021—three days after

the deadline—and it was file-stamped by the trial-court clerk on December 6, 2021—

twenty-one days after the deadline. Cf. Tex. R. App. P. 9.2(b); Taylor v. State,

424 S.W.3d 39, 46 (Tex. Crim. App. 2014).

Larez-Rivero’s ability to appeal his conviction runs into further problems

because it was made pursuant to a plea bargain. Larez-Rivero pleaded guilty to the

underlying offense and signed a waiver of his right to appeal, and the trial court

sentenced him accordingly. The trial court’s certification of his right to appeal states

that the case “is a plea-bargain case, and the defendant has NO right of appeal” and

that “the defendant has waived the right of appeal.” See Tex. R. App. P. 25.2(a)(2).

On March 22, 2022, we notified Larez-Rivero that it appeared we lacked

jurisdiction over this appeal because his notice of appeal was not timely filed and

because the trial court’s certification reflected that he had no right of appeal.1 We

advised him that this appeal could be dismissed unless he or any party desiring to

1 Prior to our March 22, 2022 letter, we questioned our jurisdiction over this appeal in two other letters to Larez-Rivero.

2 continue the appeal filed a response showing grounds for continuing the appeal on or

before April 1, 2022. See Tex. R. App. P. 44.3. Although we received a response from

Larez-Rivero, it does not address our jurisdictional concerns or show grounds for

continuing the appeal.

A timely notice of appeal is essential to vest this court with jurisdiction. See

Olivo v. State, 918 S.W.2d 519, 522–23 (Tex. Crim. App. 1996). Although we may

extend the jurisdictional deadline if a notice of appeal is filed in the trial court within

fifteen days of its due date, we may not do so in the absence of a motion requesting

such relief. See Tex. R. App. P. 26.3; Olivo, 918 S.W.2d at 522; Kessinger v. State,

26 S.W.3d 725, 726 (Tex. App.—Fort Worth 2000, pet. ref’d) (per curiam). Here,

Larez-Rivero did not file a motion for extension of time with his untimely notice of

appeal.

Moreover, the right to appeal a conviction arising from a plea-bargain

agreement is limited to matters that were raised by written motion filed and ruled

upon before trial or to cases in which the appellant obtained the trial court’s

permission to appeal. See Tex. Code Crim. Proc. Ann. art. 44.02; Tex. R. App.

P. 25.2(a)(2). The trial court’s certification in this case does not show that Larez-

Rivero was granted permission to appeal, and the record does not indicate that Larez-

Rivero intends to challenge a ruling on a written motion filed and ruled on before he

pleaded guilty. Thus, because Larez-Rivero’s appeal was untimely, and in accordance

3 with the trial court’s certification, we dismiss Larez-Rivero’s appeal. See Tex. R. App.

P. 25.2(d), 43.2(f); Olivo, 918 S.W.2d at 522–23.

/s/ Dana Womack

Dana Womack Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: April 21, 2022