Ivan Powe v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: December 19, 2024
• Docket: 02-24-00399-CR
• Status: Published

Opinion

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

No. 02-24-00399-CR ___________________________

IVAN POWE, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 371st District Court Tarrant County, Texas Trial Court No. 1766892

Before Bassel, Womack, and Wallach, JJ. Per Curiam Memorandum Opinion MEMORANDUM OPINION

Appellant Ivan Powe attempts to appeal his conviction for engaging in

organized criminal activity. After Powe pleaded guilty and entered a plea of true to

the repeat-offender notice, the trial court imposed Powe’s thirty-year sentence of

confinement on September 11, 2024. No motion for new trial was filed, so Powe’s

notice of appeal was due October 11, 2024; it was not filed until October 23, 2024.

See Tex. R. App. P. 26.2(a)(1).

Two days after he filed his notice of appeal, we sent Powe a letter stating that

the court was concerned that it may not have jurisdiction over his appeal because his

notice of appeal was not timely filed. See id. Our letter also stated that the trial court’s

certification specified that this is a plea-bargain case and that Powe had no right of

appeal. We instructed Powe or any party desiring to continue the appeal to file with

the court a response showing grounds for continuing the appeal. We received no

response.

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, Powe

did not file a motion for extension of time with his untimely notice of appeal.

2 Moreover, even if Powe’s notice of appeal had been timely filed, he had no

right of appeal from his plea bargain. The Texas Rules of Appellate Procedure are

clear that in a plea-bargain case, an appellant may appeal only 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. R. App. P. 25.2(a)(2). There is no exception for the trial

court’s refusal to grant permission to appeal. See Estrada v. State, 149 S.W.3d 280, 282

(Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (per curiam) (op. on reh’g); see also

Jones v. State, No. 02-19-00268-CR, 2019 WL 3819509, at *1 (Tex. App.—Fort Worth

Aug. 15, 2019, no pet.) (mem. op., not designated for publication). In this case, the

trial court certified that this is a plea-bargain case and that Powe “has NO right of

appeal.” Because Powe’s notice of appeal was not timely filed and because he has no

right of appeal from his plea bargain, we dismiss this appeal for lack of jurisdiction.

See Tex. R. App. P. 25.2(d); Jones, 2019 WL 3819509, at *1.

Per Curiam

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

Delivered: December 19, 2024