William Clayton Henry v. State

• Court: Court of Appeals of Texas
• Decided: August 15, 2019
• Docket: 01-19-00341-CR
• Status: Published

Opinion

Opinion issued August 15, 2019

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-19-00341-CR ——————————— WILLIAM CLAYTON HENRY, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 183rd District Court Harris County, Texas Trial Court Case No. 854250

MEMORANDUM OPINION

Pursuant to an agreement with the State, appellant, William Clayton Henry,

pleaded guilty to the felony offense of aggravated robbery with a deadly weapon, reduced from the offense of capital murder.1 The trial court found appellant guilty,

assessed his punishment at confinement for forty-five years, and certified that “this

is a plea-bargain case and [appellant] has NO right of appeal.” Appellant has filed

a pro se notice of appeal.

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); see also 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). A defendant’s notice of appeal is timely if filed within thirty days after the

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

date if the defendant timely files a motion for new trial. TEX. R. APP. P. 26.2(a); see

Bayless v. State, 91 S.W.3d 801, 805–06 (Tex. Crim. App. 2002); Lair v. State, 321

S.W.3d 158, 159 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). And, this Court

has no authority to allow the late filing of a notice of appeal except as provided by

Texas Rule of Appellate Procedure 26.3. See TEX. R. APP. P. 26.3; Olivo, 918

S.W.2d at 522.

Here, the trial court imposed sentence and signed the judgment of conviction

on April 6, 2001. The clerk’s record filed in this Court does not reflect that appellant

timely filed a motion for new trial. See TEX. R. APP. P. 21.4(a). Appellant’s notice

1 See TEX. PENAL CODE ANN. § 29.03(a)(2), (b); see also id. § 29.02(a)(2).

2 of appeal, therefore, was due to be filed no later than May 7, 2001. See TEX. R. APP.

P. 4.1(a), 26.2(a)(1); Olivo, 918 S.W.2d at 522. His notice of appeal, filed nearly

eighteen years later on March 4, 2019, was untimely to perfect an appeal of the April

6, 2001 judgment of conviction, and we have no basis for jurisdiction over the

appeal. See Olivo, 918 S.W.2d at 522; Lair, 321 S.W.3d at 159.

Moreover, in a plea-bargained case, a defendant may appeal only those

matters that were raised by written motion filed and ruled on before trial or after

obtaining the trial court’s permission to appeal. TEX. CODE CRIM. PROC. ANN. art.

44.02; TEX. R. APP. P. 25.2(a)(2). The trial court’s certification is included in the

record and states that the case is a plea-bargained case and appellant has no right of

appeal. See TEX. R. APP. P. 25.2(a)(2). The record supports the trial court’s

certification. See Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005).

Because appellant has no right of appeal, we must dismiss this appeal. 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)(2), must dismiss a prohibited appeal without

further action, regardless of the basis for the appeal.”).

Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R. APP.

P. 43.2(f). We dismiss all pending motions as moot.

PER CURIAM

3 Panel consists of Justices Kelly, Hightower, and Countiss. Do not publish. TEX. R. APP. P. 47.2(b).