Moses Eli Avila v. State

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-18-00516-CR

Moses Eli AVILA, Appellant

v.

The STATE of Texas, Appellee

From the 144th Judicial District Court, Bexar County, Texas Trial Court No. 2017CR7607 Honorable Lorina I. Rummel, Judge Presiding

Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Irene Rios, Justice

Delivered and Filed: October 3, 2018

DISMISSED FOR LACK OF JURISDICTION

The trial court imposed sentence in Cause No. 2017CR7607 on March 20, 2018. Because

appellant did not file a motion for new trial, the notice of appeal was due to be filed on April 19,

2018. TEX. R. APP. P. 26.2(a)(1). A motion for extension of time to file the notice of appeal was

due on May 4, 3028. TEX. R. APP. P. 26.3. On July 16, 2018, appellant filed a “Motion for Leave

to File Late Notice of Appeal/Continuance.”

Because the notice of appeal in this case was not timely filed, we lack jurisdiction to

entertain the appeal. See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (holding 04-18-00516-CR

that if appeal is not timely perfected, court of appeals does not obtain jurisdiction to address merits

of appeal, and court may take no action other than to dismiss appeal; court may not suspend rules

to alter time for perfecting appeal); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); 1

see also Ater v. Eighth Court of Appeals, 802 S.W.2d 241 (Tex. Crim. App. 1991) (explaining that

writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure governs

out-of-time appeals from felony convictions).

Accordingly, we dismiss this appeal for lack of jurisdiction.

DO NOT PUBLISH

1 We also note the trial court’s certification in this appeal states that “this criminal case is a plea-bargain case, and the defendant has NO right of appeal.” The clerk’s record contains a written plea bargain, and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant; therefore, the trial court’s certification accurately reflects that the criminal case is a plea-bargain case. See TEX. R. APP. P. 25.2(a)(2). Rule 25.2(d) of the Texas Rules of Appellate Procedure provides, “The appeal must be dismissed if a certification that shows the defendant has a right of appeal has not been made part of the record under these rules.” TEX. R. APP. P. 25.2(d).

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