Ismael Gonzalez v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 11, 2023
• Docket: 01-22-00669-CR
• Status: Published

Opinion

Opinion issued May 11, 2023

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-22-00669-CR ——————————— ISMAEL GONZALEZ, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court Harris County, Texas Trial Court Case No. 1527054

MEMORANDUM OPINION

Appellant, Ismael Gonzalez, pleaded guilty to the felony offense of

aggravated assault against a public servant. On December 10, 2021, in accordance

with appellant’s plea agreement with the State, the trial court signed a judgment of conviction sentencing appellant to fifteen years’ imprisonment. Appellant, acting

pro se, filed a notice of appeal on September 9, 2022. We dismiss the appeal.

In criminal cases, the appellant must file a notice of appeal “within 30 days

after the day sentence is imposed.” TEX. R. APP. P 26.2(a)(1). Because the judgment

appealed was signed on December 10, 2021, appellant’s September 9, 2022 notice

of appeal was filed eight months after the deadline. If an appeal is not timely

perfected, then a court of appeals does not obtain jurisdiction to address the merits

of the appeal and can take no action other than to dismiss the appeal. See Slaton v.

State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998). Because appellant’s notice of

appeal was untimely, we lack jurisdiction over this appeal. See TEX. R. APP. P. 25.1.

Moreover, 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); see Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005). Here,

the clerk’s record supports the trial court’s certification that this is a plea-bargain

case and that appellant has no right of appeal. See TEX. R. APP. P. 25.2(a)(2), (d);

Dears, 154 S.W.3d at 615. Because appellant has no right of appeal, we must dismiss

this appeal without further action. See Chavez v. State, 183 S.W.3d 675, 680 (Tex.

2 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),

must dismiss a prohibited appeal without further action, regardless of the basis for

the appeal.”).

Accordingly, we dismiss this appeal for lack of jurisdiction. We dismiss any

pending motions as moot.

PER CURIAM

Panel consists of Chief Justice Adams and Justices Kelly and Goodman.

Do not publish.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