Nelson Thomas II v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: November 16, 2021
• Docket: 01-20-00488-CR
• Status: Published

Opinion

Opinion issued November 16, 2021

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-20-00488-CR ——————————— NELSON THOMAS II, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court Harris County, Texas Trial Court Case No. 1597108

MEMORANDUM OPINION

Appellant, Nelson Thomas II, pleaded guilty to the felony offense of

aggravated assault of a family member. On September 6, 2019, in accordance with

appellant’s plea agreement with the State, the trial court signed an order deferring

adjudication of guilt and placing appellant on community supervision for four years. Appellant, acting pro se, filed a notice of appeal on June 26, 2020. We dismiss the

appeal.

In criminal cases, the appellant must file a notice of appeal “within 30 days

after the day sentence is imposed.” TEX. R. APP. P 26.2(a)(1). Because the order

appealed was signed on September 6, 2019, the deadline for filing the notice of

appeal was October 7, 2019. Appellant’s notice of appeal was filed on June 26, 2020,

over eight months after the deadline. If an appeal is not timely perfected, then a court

of appeals does not obtain jurisdiction to address the merits of the 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). Because appellant’s notice of appeal was untimely, we

lack jurisdiction over this appeal. See TEX. R. APP. P. 25.1.

Moreover, 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. TEX. CODE CRIM. PROC. art. 44.02; 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. TEX. R. APP. P. 25.2(d);

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

record supports the trial court’s certification 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. Because appellant has no right of appeal, we must dismiss this appeal

2 without further action. 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), must dismiss a

prohibited appeal without further action, regardless of the basis for the appeal.”).

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

pending motions as moot.

PER CURIAM

Panel consists of Justices Goodman, Rivas-Molloy, and Farris.

Do not publish.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