Michael Deshoun Kelly v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 7, 2024
• Docket: 01-22-00527-CR
• Status: Published

Opinion

Opinion issued March 7, 2024

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-22-00527-CR ——————————— MICHAEL DESHOUN KELLY, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court Harris County, Texas Trial Court Case No. 874329

MEMORANDUM OPINION

On November 30, 2001, pursuant to a plea agreement with the State, Michael

Deshoun Kelly was convicted of murder and sentenced to 60 years’ imprisonment.

Appellant filed a notice of appeal on July 7, 2022. We dismiss the appeal. A timely notice of appeal is necessary to invoke a court of appeals’

jurisdiction. See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). In a

criminal case, a defendant’s notice of appeal is due within thirty days after sentence

is imposed in open court or the trial court enters an appealable order. See TEX. R.

APP. P. 26.2(a)(1). The deadline to file a notice of appeal is extended to ninety days

after the sentence is imposed if the defendant timely files a motion for new

trial. See TEX. R. APP. P. 26.2(a)(2). Here, appellant’s notice of appeal was untimely

filed more than twenty years after the sentence was imposed in 2001. Because the

notice of appeal was untimely, we lack jurisdiction over this appeal and can take no

action other than to dismiss the appeal. See Slaton v. State, 981 S.W.2d 208, 210

(Tex. Crim. App. 1998).

Furthermore, in a plea bargain case, a defendant may only appeal those

matters that were raised by written motion filed and ruled on before trial or after

getting the trial court’s permission to appeal. See TEX. R. APP. P. 25.2(a)(2). An

appeal must be dismissed if a certification showing that the defendant has the right

of appeal has not been made part of the record. See TEX. R. APP. P. 25.2(d); Dears

v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005). Here, the trial court’s

certification states that this is a plea bargain case and that appellant has no right of

appeal. See TEX. R. APP. P. 25.2(a)(2), (d); Dears, 154 S.W.3d at 615. The record

supports the trial court’s certification. See Dears, 154 S.W.3d at 615. Because

2 appellant has no right of appeal, we must dismiss the appeal. See Chavez v. State,

183 S.W.3d 675, 680 (Tex. Crim. App. 2006) (“A court of appeals, while having

jurisdiction to ascertain whether an appellant who plea-bargained is permitted to

appeal by Rule 25.2(a)(2), must dismiss a prohibited appeal without further action,

regardless of the basis for the appeal.”).

Accordingly, we dismiss this appeal for want of jurisdiction. We dismiss any

pending motions as moot.

PER CURIAM

Panel consists of Justices Goodman, Landau, and Hightower.

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