Opinion
01-22-00148-CR
07-26-2022
JUSTO AARON CHAPA, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 209th District Court Harris County, Texas Trial Court Case No. 1605506
Panel consists of Justices Kelly, Countiss, and Rivas-Molloy.
MEMORANDUM OPINION
PER CURIAM
Appellant, Justo Aaron Chapa, with an agreed punishment recommendation from the State, pleaded guilty to the felony offense of aggravated assault. In accordance with the plea agreement, the trial court, on January 21, 2022, assessed appellant's punishment at confinement for ten years. Appellant filed a pro se notice of appeal on February 23, 2022.
See Tex. Penal Code Ann. § 22.02(a), (b).
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); Lair v. State, 321 S.W.3d 158, 159 (Tex. App.-Houston [1st Dist.] 2010, pet. ref'd). A defendant's notice of appeal is timely if it is filed within thirty days after the date the sentence is imposed or suspended in open court, or within ninety days after the date the sentence is imposed or suspended in open court, 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, 806 (Tex. Crim. App. 2002). The time for filing a notice of appeal can also be extended if, within fifteen days of the deadline for filing the notice of appeal, a defendant files his notice of appeal in the trial court and a motion for extension of time that complies with Texas Rule of Appellate Procedure 10.5(b) in the appellate court. See Tex. R. App. P. 10.5(b), 26.3; Lair, 321 S.W.3d at 159; see also Olivo, 918 S.W.2d at 522 (requiring both notice of appeal and motion for extension to be filed within fifteen days of original due date for notice of appeal).
On January 21, 2022, the trial court imposed appellant's sentence and signed and entered its judgment of conviction. Appellant did not file a motion for new trial and did not file a motion for extension of time to file his notice of appeal, making his notice of appeal due on or before February 21, 2022. See Tex. R. App. P. 4.1(a), 26.2(a)(1).
On February 23, 2022, appellant filed his pro se notice of appeal from the trial court's January 21, 2022 judgment. Because appellant's notice of appeal was untimely filed, we lack jurisdiction to address the merits of his 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); see also Badryrka v. State, No. 01-21-00339-CR, 2021 WL 5312651, at *1 (Tex. App.-Houston [1st Dist.] Nov. 16, 2021, no pet.) (mem. op., not designated for publication).
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, after obtaining the trial court's permission to appeal, or where the specific appeal is authorized by statute. Tex. Code Crim. Proc. Ann. art. 44.02; Tex.R.App.P. 25.2(a)(2). The trial court must sign a certification of a defendant's right of appeal each time it enters a judgment of guilt or other appealable order. Tex.R.App.P. 25.2(a)(2). An appeal must be dismissed if a certification showing that the defendant has a right of appeal has not been made part of the record. Tex.R.App.P. 25.2(d); Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005).
Here, the trial court's certification is included in the record on appeal and states that this case "[i]s a plea-bargain case, and [appellant] has NO right of appeal." See Tex. R. App. P. 25.2(a)(2), (d). The record supports the trial court's certification. See Dears, 154 S.W.3d at 615. Because appellant has no right of appeal, we must dismiss the 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 [Texas] Rule [of Appellate Procedure] 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 lack of jurisdiction. See Tex. R. App. P. 43.2(f). We dismiss all pending motions as moot.