Michael Jermaine Gore v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: February 17, 2022
• Docket: 01-21-00700-CR
• Status: Published

Opinion

Opinion issued February 17, 2022

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-21-00700-CR ——————————— MICHAEL JERMAINE GORE, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 209th District Court Harris County, Texas Trial Court Case No. 1484196

MEMORANDUM OPINION

After appellant, Michael Jermaine Gore, pleaded guilty to the felony offense

of compelling prostitution,1 the trial court deferred adjudication of appellant’s guilt

and placed him on community supervision for ten years. The State, alleging

1 See TEX. PENAL CODE ANN. § 43.05. numerous violations of the conditions of appellant’s community supervision,

subsequently moved to adjudicate his guilt. On December 7, 2018, the trial court

signed a judgment in which it found that appellant had violated certain conditions of

his community supervision, found appellant guilty, and assessed his punishment at

confinement for twelve years. Appellant filed a pro se notice of appeal on

December 13, 2021.

We dismiss the appeal for lack of jurisdiction.

We cannot exercise jurisdiction over an appeal without a timely filed notice

of appeal. See TEX. R. APP. P. 26.2(a); Castillo v. State, 369 S.W.3d 196, 198 (Tex.

Crim. App. 2012); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); Lair

v. State, 321 S.W.3d 158, 159 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). A

defendant’s notice of appeal is timely if it is filed within thirty days after the date the

sentence is imposed or suspended in open court, or within ninety days after the date

the sentence is imposed or suspended in open court if the defendant files a motion

for new trial. TEX. R. APP. P. 26.2(a); see Bayless v. State, 91 S.W.3d 801, 806 (Tex.

Crim. App. 2002). The time for filing a notice of appeal can also be extended if,

within fifteen days of the deadline for filing the notice of appeal, a defendant files

his notice of appeal in the trial court and a motion for extension of time that complies

with Texas Rule of Appellate Procedure 10.5(b) in the appellate court. See TEX. R.

APP. P. 10.5(b), 26.3; Lair, 321 S.W.3d at 159; see also Olivo, 918 S.W.2d at

2 522 (requiring both notice of appeal and motion for extension to be filed within

fifteen days of original due date for notice of appeal).

On December 7, 2018, the trial court signed and entered its judgment. The

appellate record does not indicate that any post-trial motion which would extend the

deadline to file a notice of appeal was filed. Accordingly, any notice of appeal was

due to be filed with the trial court within thirty days after the entry of the trial court’s

judgment, on or before January 7, 2019.

On December 13, 2021, appellant filed his pro se notice of appeal from the

trial court’s December 7, 2018 judgment. Because appellant’s notice of appeal is

untimely filed, we lack jurisdiction to address the merits of his appeal and can take

no other action than to dismiss the appeal. See Slaton v. State, 981 S.W.2d 208, 210

(Tex. Crim. App. 1998).

Further, the appellate record includes a certification of appellant’s right of

appeal stating that this “is a plea-bargain case, and the [appellant] has NO right of

appeal.” This certification is supported by the appellate record.

The Texas Rules of Appellate Procedure set out the right to appeal for criminal

defendants. Rule 25.2(a) states that in a case where a defendant voluntarily pleaded

guilty, the 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.” TEX. R. APP. P. 25.2(a)(2)(A), (B). Here, appellant does not appeal from

3 any matter “raised by written motion filed and ruled on before trial,” nor did the trial

court grant appellant permission to appeal.

Accordingly, we have no jurisdiction to consider appellant’s appeal and

dismiss the appeal for lack of jurisdiction. See TEX. R. APP. P. 43.2(f). We dismiss

any other pending motions as moot.

PER CURIAM

Panel consists of Justices Kelly, Goodman, and Guerra.

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