Opinion
04-22-00871-CR
02-22-2023
Sean Michael FOXX, Appellant v. The STATE of Texas, Appellee
Do Not Publish
From the 175th Judicial District Court, Bexar County, Texas Trial Court No. 2012CR8672A Honorable Mary Roman, Judge Presiding
Sitting: Luz Elena D. Chapa, Justice, Irene Rios, Justice Beth Watkins, Justice
MEMORANDUM OPINION
PER CURIAM
Appellant Sean Michael Foxx entered into a plea bargain with the State, pursuant to which he pleaded nolo contendere to the charged offense. On January 13, 2014, in accordance with the plea agreement, the trial court imposed a sentence of six years' confinement. The trial court also signed a certificate stating this "is a plea-bargain case, and the defendant has NO right of appeal." See Tex.R.App.P. 25.2(a)(2). Foxx now seeks to appeal the trial court's judgment of conviction by filing a pro se notice of appeal from a negotiated plea.
A timely notice of appeal is necessary to invoke this court's jurisdiction. See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). The clerk's record shows the trial court imposed a sentence in accordance with the plea bargain agreement on January 13, 2014. Bailey v. State, 160 S.W.3d 11, 15 (Tex. Crim. App. 2004). Foxx did not file a motion for new trial, making his notice of appeal due by February 12, 2014, or a motion for extension of time due fifteen days later on February 27, 2014. See Tex. R. App. P. 26.2(a)(1), 26.3. Foxx's notice of appeal is file-stamped December 9, 2022, and there is nothing in the record indicating Foxx filed a motion for an extension of time or received an extension in order to timely file his notice of appeal. See id. R. 26.3.
The clerk's record also includes the trial court's Rule 25.2(a)(2) certification stating "this criminal case is a plea-bargain case, and the defendant has NO right of appeal." We must dismiss an appeal "if a certification that shows the defendant has the right of appeal has not been made part of the record." Id. R. 25.2(d). The record establishes the punishment assessed by the court does not exceed the punishment recommended by the prosecutor and agreed to by Foxx. See id. R. 25.2(a)(2). The record also supports the trial court's certification showing Foxx does not have a right to appeal. See Dears v. State, 154 S.W.3d 610 (Tex. Crim. App. 2005) (holding court of appeals should review clerk's record to determine whether trial court's certification is accurate).
"When a notice of appeal, but no motion for extension of time, is filed within the fifteen-day period, the court of appeals lacks jurisdiction to dispose of the purported appeal in any manner other than by dismissing it for lack of jurisdiction." Olivo, 918 S.W.2d at 523, 525 ("In criminal cases, as opposed to civil cases, jurisdiction cannot be substantially invoked; it either attaches or it does not.").
Because it appeared the notice of appeal was untimely filed and Foxx did not have the right to appeal, we ordered Foxx to file a response establishing the notice of appeal was timely filed and to file an amended certification showing he had the right to appeal. See Tex. R. App. P. 25.2(d); 37.1; Olivo, 918 S.W.2d at 522 (holding that timely notice of appeal is necessary to invoke court of appeals' jurisdiction). We admonished Foxx that a failure to satisfactorily respond to this court's order within the time provided would result in the dismissal of the appeal. Foxx did not file a response.
Accordingly, we dismiss this appeal for lack of jurisdiction.