Richard L. Starr v. State

• Court: Court of Appeals of Texas
• Decided: March 7, 2013
• Docket: 10-12-00435-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-12-00435-CR

RICHARD L. STARR, Appellant v.

THE STATE OF TEXAS, Appellee

From the 19th District Court McLennan County, Texas Trial Court No. 2010-1036-C1

MEMORANDUM OPINION

Appellant, Richard Starr, attempts to appeal from his November 15, 2010

conviction for felony driving while intoxicated. See TEX. PENAL CODE ANN. § 49.04

(West Supp. 2012). By a letter dated January 16, 2013, the Clerk of this Court notified

Starr that his appeal was subject to dismissal because his notice of appeal was filed

approximately two years after his sentence was imposed. See TEX. R. APP. P. 25.2(b),

26.2(a) (providing, among other things, that a defendant must file his notice of appeal

within thirty days after the sentence is imposed or after entry of an appealable order or within ninety days after the sentence is imposed if a motion for new trial is timely filed).

The Clerk warned Starr that his appeal would be dismissed unless, within twenty-one

days of the date of the letter, a response was filed showing grounds for continuing the

appeal. See id. at R. 44.3.

Starr did not timely respond to the Clerk’s letter. However, a few days after the

twenty-one-day deadline passed, we received an undated letter sent from the Byrd Unit

in Huntsville, Texas. Another inmate wrote the letter and stated that he is “Law

Counselor for Mr. Starr.” In this letter, the inmate notes that he is representing Starr

and requests a free copy of the record and an extension of time. Notwithstanding the

fact that the letter does not demonstrate that the inmate is a licensed attorney in the

State of Texas who is authorized to represent Starr in legal matters, at no point does the

inmate explain the tardiness of Starr’s notice of appeal.1

As stated previously, Starr’s notice of appeal is untimely—a fact which deprives

this Court of jurisdiction over this matter and subjects this case to dismissal. See TEX. R.

APP. P. 26.2(a); see also Morrison v. State, No. 10-11-00157-CR, 2011 Tex. App. LEXIS 5011,

at **1-2 (Tex. App.—Waco June 29, 2011, no pet.) (mem. op., not designated for

publication) (dismissing a defendant’s appeal for lack of jurisdiction because, among

other things, he did not timely file his notice of appeal). In addition, Starr has failed to

timely and adequately respond to the Clerk’s January 16, 2013 letter, which also subjects

1 A further review of the record shows that Starr’s sentence was a product of a plea bargain with

the State. Accordingly, the trial court noted in its certification of Starr’s right of appeal that this is a plea- bargain case and that Starr has no right of appeal. See TEX. R. APP. P. 25.2(a)(2) (noting that a defendant may only appeal: (1) those matters raised by written motion and ruled upon before trial; or (2) after getting the trial court’s permission to appeal).

Starr v. State Page 2 this case to dismissal for want of prosecution. See Ealy v. State, 222 S.W.3d 744, 745 (Tex.

App.—Waco 2007, no pet.) (citing Peralta v. State, 82 S.W.3d 724, 725-26 (Tex. App.—

Waco 2002, no pet.)); see also Evans v. State, No. 10-09-00251-CR, 2010 Tex. App. LEXIS

546, at *3 (Tex. App.—Waco Jan. 27, 2010, no pet.) (mem. op., not designated for

publication).

Based on the foregoing, we hereby dismiss Starr’s appeal.

AL SCOGGINS Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Dismissed Opinion delivered and filed March 7, 2013 Do not publish [CRPM]

Starr v. State Page 3