Jerry Antoine Nolan v. State

Opinion

DISMISS and Opinion Filed March 10, 2021

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00136-CR

JERRY ANTOINE NOLAN, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 194th Judicial District Court Dallas County, Texas Trial Court Cause No. F15-00427-M

MEMORANDUM OPINION Before Justices Schenck, Smith, and Garcia Opinion by Justice Smith On September 30, 2015, Jerry Antoine Nolan pleaded guilty to aggravated

robbery, pleaded true to two prior felony convictions, and waived his right to appeal

under a plea bargain agreement with the State. In exchange, the State recommended

a twenty-five-year sentence. The trial court followed the terms of the plea bargain

agreement, found appellant guilty and the enhancement paragraphs true, and

sentenced him to twenty-five years. The trial court certified that this was a plea-

bargain case and appellant had waived his right to appeal. Although appellant filed a notice of appeal on October 16, 2015, he later filed

a motion to withdraw his appeal, noting that he had waived his right to appeal in the

plea bargain agreement. We granted the motion and dismissed his original direct

appeal. Nolan v. State, No. 05-15-01528-CR, 2015 WL 6690181, at *1 (Tex. App.—

Dallas Nov. 3, 2015, no pet.) (not designated for publication). The Court now has

before it appellant’s March 3, 2021 “Notice of Appeal.” Appellant does not reference

any new appealable order but asks this Court to review his case and 2015 conviction.

An appellate court has jurisdiction to determine an appeal only if the appeal

is authorized by law. Abbott v. State, 271 S.W.3d 694, 696–97 (Tex. Crim. App.

2008). When the appellate court’s jurisdiction is not legally invoked, the court’s

power to act is as absent as if it did not exist. Olivo v. State, 918 S.W.2d 519, 523

(Tex. Crim. App. 1996). Appellate courts may consider criminal appeals only after

final conviction or the entry of a narrow set of appealable interlocutory orders and

the filing of timely filed notices of appeal. TEX. R. APP. P. 26.2(a)(1); Wright v. State,

969 S.W.2d 588, 589 (Tex. App.—Dallas 1998, no pet.).

A timely filed notice of appeal is required to invoke this Court’s jurisdiction.

Castillo v. State, 369 S.W.3d 196, 198 (Tex. Crim. App. 2012). In the absence of a

timely filed notice of appeal, we have no option other than to dismiss the appeal. Id.

A defendant perfects an appeal by filing with the trial court clerk, within thirty days

after the date sentence was imposed, or within ninety days after sentencing if the

–2– defendant timely filed a motion for new trial, a written notice of appeal showing his

desire to appeal. See TEX. R. APP. P. 25.2(b), (c), 26.2(a).

The trial court entered the judgment on September 30, 2015; absent a timely

filed motion for new trial, any notice of appeal was due on October 30, 2015. See

TEX. R. APP. P. 26.2(a). Because appellant’s pro se notice of appeal was filed on

March 3, 2021, it was untimely, and we lack jurisdiction over this appeal.

We further note that appellant entered into a plea bargain with the State in

which he agreed to waive his right to appeal. When an appellant waives his right to

appeal as part of his plea bargain agreement with the State, a subsequent notice of

appeal filed by him fails to “initiate the appellate process,” thereby depriving this

Court of jurisdiction over the appeal. Lundgren v. State, 434 S.W.3d 594, 599, 600

(Tex. Crim. App. 2014). For these reasons, we conclude we lack jurisdiction over

this case.

We dismiss this appeal for want of jurisdiction.

/Craig Smith/ CRAIG SMITH JUSTICE

Do Not Publish TEX. R. APP. P. 47.2(b) 210136F.U05

–3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JERRY ANTOINE NOLAN, On Appeal from the 194th Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F15-00427-M. No. 05-21-00136-CR V. Opinion delivered by Justice Smith. Justices Schenck and Garcia THE STATE OF TEXAS, Appellee participating.

Based on the Court’s opinion of this date, we DISMISS this appeal.

Judgment entered March 10, 2021

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