James Otis Clary v. State

• Court: Court of Appeals of Texas
• Decided: March 27, 2015
• Docket: 03-15-00181-CR
• Status: Published

Opinion

ACCEPTED 03-15-00181-CR 4672166 THIRD COURT OF APPEALS AUSTIN, TEXAS 3/27/2015 12:32:29 PM JEFFREY D. KYLE CLERK No. 03-15-00181-CR

In the FILED IN 3rd COURT OF APPEALS Court of Appeals for the Third District of Texas AUSTIN, TEXAS at Austin 3/27/2015 12:32:29 PM ___________________________ JEFFREY D. KYLE Clerk On Appeal from the 277th Judicial District Court, of Williamson County, Texas In Cause No. 85-355-K2 ____________________________

JAMES OTIS CLARY Appellant v. THE STATE OF TEXAS, Appellee _____________________________

STATE’S MOTION TO DISMISS _____________________________

TO THE HONORABLE COURT:

COMES NOW Appellee, the State of Texas, by and through the

undersigned assistant district attorney, and files this Motion to Dismiss.

The State contends that this Court should dismiss this appeal because (1) the

Defendant’s waiver of his right to appeal in the trial court divests this court of

jurisdiction, and (2) the Defendant’s notice of appeal is untimely by approximately

40 years.

In support hereof, Appellant would show this Court the following: I. Appellant has Waived his Right to Appeal

Appellant was convicted and sentenced to life in prison in the above cause

on September 19, 1985, pursuant to a plea bargain. See Exhibit A. As part of his

acceptance of the plea bargain, and the trial court accepting said plea bargain and

pronouncing the agreed upon sentence, Appellant waived his right to appeal. See

Exhibit B. Therefore the trial court cannot certify that Appellant has a right to

appeal and the appeal must be dismissed pursuant to Tex. R. App. P. 25.2(d).

Further, nothing in Appellant’s notice of appeal indicates he received

permission from the trial court to appeal the results of his plea bargain. Hence his

appeal is barred under Tex. R. App. P. 25.2(a)(2) and Tex. Code Crim. Proc. Art.

44.02.

II. Appellant’s Notice of Appeal is Untimely

Tex. R. App. P. 26.2(a) requires notice of appeal within 30 days after the

trial court imposes the sentence or enters the appealable order or within 90 days if

the Appellant files a timely motion for new trial. Appellant filed his notice of

appeal on March 19, 2015, almost 40 years after his sentencing date of September

19, 1985. Therefore, Appellant has not perfected his appeal and this court should

not entertain it. See e.g. Delatorre v. State, 957 S.W.2d 145 (Tex. App.—Austin

1997). III. Prayer

WHEREFORE PREMISES CONSIDERED, Appellant respectfully requests

that this Court dismiss the instant appeal for want of jurisdiction.

Respectfully submitted,

Jana Duty District Attorney Williamson County, Texas /s/ John C. Prezas John C. Prezas Assistant District Attorney State Bar Number 24041722 405 Martin Luther King #1 Georgetown, Texas 78626 (512) 943-1248 (512) 943-1255 (fax) jprezas@wilco.org

CERTIFICATE OF SERVICE I certify that a copy of the State’s Motion to Dismiss has been sent by regular mail to Applicant, on March 27, 2015, to the following address: Mr. James O. Clary, Petitioner TDJC# 406109 379 FM 2972 West— Hodge Unit Rusk, TX 75785-3666 _/S/ John C. Prezas____________________ John C. Prezas

CERTIFICATE OF COMPLIANCE I certify that the State’s answer contains 357 words, after applicable exclusions, in compliance with amended Texas Rule of Appellate Procedure 9.4(3) _/S/ John C. Prezas____________________ John C. Prezas EXHIBIT A

(Judgment, Sentence, Plea Bargain Agreement) EXHIBIT B

(Waiver of Appeal)