Jose Benicio Simental v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 10, 2021
• Docket: 07-21-00136-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-21-00136-CR ________________________

JOSE BENICIO SIMENTAL, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 222nd District Court Oldham County, Texas Trial Court No. OCR-20C-023; Honorable Roland Saul, Presiding

August 10, 2021

MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and DOSS, JJ.

Pending before this court is a motion filed by Appellant, Jose Benicio Simental, to

allow his appeal to proceed for the limited purpose of resolving the assessment of $2,880

for court-appointed attorney’s fees. For the reasons expressed herein, the motion is

rendered moot and we dismiss this appeal for want of jurisdiction, as there are no grounds

on which to continue the appeal. Pursuant to a plea agreement, Appellant was convicted of evading arrest or

detention with a vehicle.1 Per his plea agreement, Appellant is to serve fifteen months

confinement in the Correctional Institutions Division of the Texas Department of Criminal

Justice. Despite being convicted pursuant to a plea agreement, and despite having

waived his rights of appeal, Appellant timely filed a notice of appeal. As per the

agreement, the Trial Court’s Certification of Defendant’s Right to Appeal indicates

Appellant has no right of appeal and that he waived the right of appeal. The certification

prompted a letter from the clerk of this court advising Appellant’s court-appointed counsel

that the appeal was subject to dismissal unless an amended certification showing a right

of appeal was provided or he demonstrated other grounds for continuing the appeal.

Counsel responded with a motion to continue the appeal for the limited purpose of

challenging the assessment of court-appointed attorney’s fees.

On July 30, 2021, Appellant notified this court that the trial court entered an Order

Granting Judgment Nunc Pro Tunc deleting the assessment of $2,880 for court-appointed

attorney’s fees from the original judgment. He also provided a copy of that judgment.

Consequently, Appellant’s motion to continue this appeal is moot. Per this court’s

letter directing an amended certification or an explanation for continuing the appeal, we

now dismiss this appeal.

Per Curiam

1 TEX. PENAL CODE ANN. § 38.04(b)(1)(B) (West 2016).