Jose Martinez v. State

Opinion

NUMBER 13-16-00624-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

JOSE MARTINEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 319th District Court of Nueces County, Texas.

MEMORANDUM OPINION Before Justices Contreras, Longoria, and Hinojosa Memorandum Opinion by Justice Longoria

Appellant Jose Martinez appeals his conviction of burglary of a habitation, a

second-degree felony. See TEX. PENAL CODE ANN. § 30.02(a)(1) (West, Westlaw through

2017 1st C.S.). By one issue, he argues the evidence was legally insufficient. We dismiss

for want of jurisdiction. I. BACKGROUND

Appellant was tried by a jury for the offense of burglary of a habitation. See TEX.

PENAL CODE ANN. § 30.02(a)(1). On October 11, 2016, prior to trial, the trial court certified

that appellant’s case was not a plea bargain case and that appellant had the right to

appeal. After the jury delivered a guilty verdict, appellant waived his right to punishment

by jury and agreed to assessment of punishment by the court. At his punishment hearing

on October 14, 2016, appellant signed a “Plea Agreement on Punishment.” As part of

the signed plea agreement, appellant waived any pretrial motions as well as his right to

appeal. Appellant orally affirmed during sentencing that his plea was given voluntarily

and that he understood that he would not be able to appeal the conviction or sentence.

The trial court followed the agreed upon recommendation, and appellant was sentenced

to five-years’ confinement in the Texas Department of Criminal Justice—Institutional

Division. The trial court did not file an updated certification of appellant’s right to appeal.

Judgment was rendered and sentence was imposed on October 14, 2016.

On November 14, 2016, appellant filed his notice of appeal. Appellate counsel

was appointed, and this appeal followed.

II. DISCUSSION

The State raised two issues with appellant’s appeal: (1) whether we have

jurisdiction to consider appellant’s appeal, and (2) whether defendant waived his right to

appeal.

A. Timely Notice of Appeal and Appellate Jurisdiction

The State raises the issue of whether we have jurisdiction to consider appellant’s

appeal because of appellant’s late filing of his notice of appeal.

2 1. Applicable Law

A defendant must file notice of appeal within thirty days after sentence is imposed

to vest the court of appeals with jurisdiction. See TEX. R. APP. P. 26.2(a)(1); Slaton v.

State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (per curiam). If the last day of this

thirty day period falls on a Saturday, Sunday, or legal holiday, the time period extends to

the next day that is not a Saturday, Sunday, or legal holiday. TEX. R. APP. P. 4.1(2). An

extension of time may be granted if a motion is filed, but cannot be granted by Texas Rule

of Appellate Procedure 2. See id. R. 26.3; Olivo v. State, 918 S.W.2d 519, 522 (Tex.

Crim. App. 1996) (en banc). Amendments to Rule 2 have not changed this holding.

Slaton, 981 S.W.2d at 210.

2. Analysis

Appellant’s thirty day time period for filing notice of appeal ended on November 13,

2016. However, because November 13, 2016 was a Sunday, his notice of appeal was

due November 14, 2016. See TEX. R. APP. P. 4.1(2). He filed his notice of appeal on

November 14, 2016. As such, appellant’s notice of appeal was timely filed.

B. Waiver of Appellant’s Right to Appeal

The State also raises the issue of whether appellant waived his right to appeal by

entering into a plea bargain.

1. Applicable Law

In order for a defendant to appeal, the trial court must certify his right to appeal.

TEX. R. APP. P. 25.2(d). Waiver of the right to appeal after conviction but before

sentencing is binding. See Blanco v. State, 18 S.W.3d 218, 220 (Tex. Crim. App. 2000)

(en banc); see also Buck v. State, 45 S.W.3d 275, 278 (Tex. App.—Houston [1st Dist.]

3 2001, no pet.) (holding that a pre-sentencing waiver conditioned on acceptance of a plea

bargain is enforceable); Salazar v. State, No. 02-18-00004-CR, 2018 WL 1324487, at *1

(Tex. App.—Fort Worth Mar. 15, 2018, no pet.) (mem. op., not designated for publication).

When a defendant enters into such an agreement voluntarily and with knowledge of the

consequences, it is “not unfair” to expect the defendant to live with the consequences.

Blanco, 18 S.W.3d at 220.

Prior to trial, the trial court certified appellant’s right to appeal. See Tex. R. App.

P. 25.2(d). However, upon conviction and prior to the punishment hearing, appellant

signed a plea bargain indicating, both in writing and orally, that he waived his right to

appeal and that he understood his voluntary decision to do so. Pursuant to his waiver of

the right to appeal, the trial court did not recertify his right to appeal. Appellant has not

raised any reason why the plea bargain and subsequent waiver should not be upheld.

We conclude that appellant’s waiver of his right to appeal is enforceable. See id.

III. CONCLUSION

We dismiss the appeal for want of jurisdiction.

NORA L. LONGORIA Justice

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

Delivered and filed the 21st day of June, 2018.