Opinion
10-23-00183-CR
07-26-2023
ELIAS MARTINEZ-VARGAS, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish
From the 19th District Court McLennan County, Texas Trial Court No. 2020-700-C1
Before Chief Justice Gray, Justice Johnson, and Justice Smith
MEMORANDUM OPINION
TOM GRAY, CHIEF JUSTICE
Elias Martinez-Vargas appeals his conviction of three counts of Aggravated Sexual Assault of a Child. The judgments were signed on June 2, 2022. Martinez-Vargas' notice of appeal was due July 5, 2022. See Tex. R. App. P. 26.2(a)(1). It's filing on June 21, 2023, is untimely.
Martinez-Vargas also presented a motion for an extension of time to file his notice of appeal. It is untimely as well. See id. 26.3. When both the notice of appeal and the motion for extension of time to file a notice of appeal are untimely, we have no jurisdiction to grant an out of time appeal; that authority belongs exclusively to the Court of Criminal Appeals through a writ of habeas corpus. See Parr v. State, 206 S.W.3d 143, 144-45 (Tex. App.-Waco 2006, no pet).
We have no jurisdiction of an untimely appeal, and this appeal must be dismissed. See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996) (no appellate jurisdiction where notice of appeal is untimely). Accordingly, this appeal is dismissed.
Even if Martinez-Vargas' notice of appeal was timely, this appeal would still be dismissed because Martinez-Vargas pled guilty pursuant to a plea bargain and the trial court's certificate of right of appeal indicates Martinez-Vargas has no right to appeal and has waived his right to appeal. See Tex. R. App. P. 25.2(d) ("The appeal must be dismissed if a certification that shows the defendant has the right of appeal has not been made part of the record under these rules."); Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006) (plea bargain); Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003) (waiver of appeal).
Martinez-Vargas' motion for leave and motion for extension of time are also dismissed.
Appeal dismissed
Motions dismissed