Samuel Elbert Winstead v. State

• Court: Court of Appeals of Texas
• Decided: November 20, 2019
• Docket: 10-19-00392-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-19-00392-CR

SAMUEL ELBERT WINSTEAD, Appellant v.

THE STATE OF TEXAS, Appellee

From the 85th District Court Brazos County, Texas Trial Court No. 11-01531-CRF-85

MEMORANDUM OPINION

Appellant Samuel Elbert Winstead was convicted of assault family violence with

priors in the 85th Judicial District Court of Brazos County, Texas. Winstead’s sentence

was imposed on August 17, 2011, and the trial court signed the judgment on August 26,

2011. The trial court additionally signed a Certification of Defendant’s Right of Appeal

on August 17, 2011, indicating that this is a plea bargain case and that Winstead has

waived his right to appeal. Winstead’s notice of appeal was filed on October 31, 2019,

more than eight years after his sentence was imposed. We must dismiss an appeal “without further action, regardless of the basis for the

appeal” if the trial court’s certification shows there is no right to appeal. See Chavez v.

State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006); Monreal v. State, 99 S.W.3d 615, 622 (Tex.

Crim. App. 2003) (holding that an appellant who has executed a waiver of appeal,

whether negotiated or non-negotiated, could not appeal without securing the permission

of the trial court). We additionally have no jurisdiction of an untimely appeal. See Olivo

v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996) (no appellate jurisdiction where notice

of appeal is untimely). Accordingly, the appeal is dismissed.

Notwithstanding that we are dismissing this appeal, Winstead may file a motion

for rehearing with this Court within fifteen (15) days after the judgment of this Court is

rendered. See TEX. R. APP. P. 49.1. If Winstead desires to have the decision of this Court

reviewed by filing a petition for discretionary review, that petition must be filed with the

Court of Criminal Appeals within thirty (30) days after either the day this Court’s

judgment is rendered or the day the last timely motion for rehearing is overruled by this

Court. See TEX. R. APP. P. 68.2(a).

REX D. DAVIS Justice

Winstead v. State Page 2 Before Chief Justice Gray, Justice Davis, and Justice Neill Dismissed Opinion delivered and filed November 20, 2019 Do not publish [CR25]

Winstead v. State Page 3