Opinion
NO. 01-18-00293-CR
05-31-2018
GREGORIO GUERRERO, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 339th District Court Harris County, Texas
Trial Court Case No. 1379958
MEMORANDUM OPINION
Appellant, Gregorio Guerrero, pursuant to an agreement with the State, pleaded guilty to the felony offense of aggravated robbery with a deadly weapon. On October 31, 2013, the trial court found appellant guilty and assessed his punishment at confinement for five years. On March 19, 2018, appellant filed a pro se notice of appeal.
See TEX. PENAL CODE ANN. § 29.03(a)(2) (Vernon 2011).
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) (citation omitted); 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). Here, the trial court imposed sentence and signed the judgment of conviction on October 31, 2013. The clerk's record filed in this Court reflects that appellant timely filed a motion for new trial. See TEX. R. APP. P. 21.4(a). Appellant's notice of appeal, therefore, was due to be filed no later than January 29, 2014. See TEX. R. APP. P. 26.2(a)(1); Olivo, 918 S.W.2d at 522. His notice of appeal, filed on March 19, 2018, was untimely to perfect an appeal of the October 31, 2013 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; see, e.g., Guerrero v. State, No. 01-17-00314-CR, 2017 WL 2980182, at *1 (Tex. App.—Houston [1st Dist.] July 13, 2017, no pet.) (mem. op., not designated for publication)
We have also affirmed appellant's convictions for a separate felony offense of aggravated robbery with a deadly weapon and the felony offense of evading arrest. See Guerrero v. State, Nos. 01-13-00821-CR, 01-13-00822-CR, 2015 WL 2266247 (Tex. App.—Houston [1st Dist.] May 14, 2015) (mem. op., not designated for publication), jgm't rev'd on other grounds, Guerrero v. State, Nos. PD-0665-15, PD-0666-15, 2017 WL 4410256 (Tex. Crim. App. Oct. 4, 2017) (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 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 Panel consists of Chief Justice Radack and Justices Jennings and Lloyd. Do not publish. TEX. R. APP. P. 47.2(b).