Opinion
04-24-00750-CR
11-15-2024
Michael Anthony ALEMAN, Appellant v. The STATE of Texas, Appellee
From the 144th Judicial District Court, Bexar County, Texas Trial Court No. 2023CR0560 Honorable Michael E. Mery, Judge Presiding.
ORDER
Irene Rios, Justice.
Pursuant to a plea-bargain agreement, appellant pled nolo contendere to one count of theft from an elderly person in an amount greater than $750.00 but less than $2,500.00 and, in accordance with the terms of his plea-bargain agreement, was fined $1,500.00 and placed on deferred adjudication community supervision.
"In a plea bargain case . . . a defendant may appeal only: (A) those matters that were raised by written motion filed and ruled on before trial, (B) after getting the trial court's permission to appeal, or (C) where the specific appeal is expressly authorized by statute." Id. 25.2(a)(2). "In a plea-bargain case for deferred adjudication community supervision, the plea bargain is complete at the time the defendant enters his plea of guilty in exchange for deferred adjudication community supervision." Hargesheimer v. State, 182 S.W.3d 906, 913 (Tex. Crim. App. 2006). Thus, Rule 25.2(a)(2) of the Texas Rules of Appellate Procedure "will restrict appeal . . . when the defendant appeals his placement on deferred adjudication community supervision pursuant to the original plea." Id. "Under this circumstance, the trial judge certifying the defendant's right of appeal may designate the case on the certification form as 'a plea-bargain case, and the defendant has NO right of appeal." Id.
However, the defendant may still appeal matters raised by written motion filed and ruled upon before his placement on deferred adjudication or after obtaining the trial court's permission to appeal. See Hargesheimer v. State, 182 S.W.3d 906, 913 (Tex. Crim. App. 2006); see also TEX. R. APP. P. 25.2(a)(2).
On March 7, 2023, the trial court signed a certification of defendant's right to appeal stating this "is a plea-bargain case, and the defendant has NO right of appeal." See Tex.R.App.P. 25.2(a)(2). On August 21, 2024, the trial court modified the conditions of appellant's community supervision to require appellant to participate in a drug treatment program. Appellant attempts to appeal the trial court's order amending conditions of his deferred adjudication community supervision. It appears we do not have jurisdiction over this appeal for several reasons.
The clerk's record does not include a written motion filed and ruled upon before trial; nor does it indicate that the trial court gave its permission to appeal. See TEX. R. APP. P. 25.2(a)(2).
First, 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. 25.2(d). The record does not contain a certification showing appellant has a right to appeal the trial court's order amending the conditions of his community supervision.
Second, courts of appeal have jurisdiction of an appeal by a criminal defendant only after a conviction or when an appeal is specifically authorized by statute. See Skillern v. State, 355 S.W.3d 262, 266-67 (Tex. App.-Houston [1st Dist.] 2011, pet. ref'd) (citing Workman v. State, 343 S.W.2d 446, 447 (Tex. Crim. App. 1961)); see also Ragston v. State, 424 S.W.3d 49, 52 (Tex. Crim. App. 2014); Gary v. State, No. 04-14-00520-CR, 2014 WL 3930752, at *1 (Tex. App.-San Antonio Aug. 13, 2014, pet. ref'd). We have found no statute authorizing a criminal defendant to appeal an order amending conditions of deferred adjudication community supervision. See TEX. CODE CRIM. PROC. ANN. art. 42A.051(b) ("The judge of the court having jurisdiction of the case may, at any time during the period of community supervision, modify the conditions of community supervision."); TEX. CODE CRIM. PROC. ANN. art. 42A.104 (providing, in deferred adjudication community supervision, "[t]he judge may impose a fine applicable to the offense and require any reasonable condition of deferred adjudication community supervision that a judge could impose on a defendant placed on community supervision for a conviction that was probated and suspended . . ."). Thus, it appears that we lack jurisdiction to entertain this appeal.
Lastly, it appears appellant's notice of appeal is untimely. The trial court rendered the order modifying the conditions of appellant's deferred adjudication community supervision on August 21, 2024. Because a motion for new trial was not filed, the notice of appeal was due to be filed on September 20, 2024. Tex.R.App.P. 26.2(a)(1). A motion for extension of time to file the notice of appeal was due on October 7, 2024. Tex.R.App.P. 26.3. The record reflects appellant did not file his notice of appeal until October 24, 2024, and appellant did not file a motion for extension of time to file his notice of appeal.
"A timely notice of appeal is necessary to invoke the jurisdiction of this Court." Taylor v. State, 424 S.W.3d 39, 43 (Tex. Crim. App. 2014). "A defendant's notice of appeal is timely if filed within thirty days after the day sentence is imposed or suspended, or within ninety days after sentencing if the defendant timely files a motion for new trial." Id. (citing Tex.R.App.P. 26.2(a)(1)). Because appellant did not timely file a notice of appeal, it appears that we lack jurisdiction over this appeal.
We, therefore, ORDER appellant to show cause on or before December 2, 2024 why this appeal should not be dismissed for lack of jurisdiction. Even if appellant is able to show that his notice of appeal was timely filed and we have jurisdiction over this appeal, this appeal will nevertheless be dismissed pursuant to Texas Rule of Appellate Procedure 25.2(d) unless an amended trial court certification showing that appellant has the right to appeal is made part of the appellate record on or before the above date. See Tex.R.App.P. 25.2(d), 37.1; Daniels v. State, 110 S.W.3d 174 (Tex. App.-San Antonio 2003, no pet.).
All other appellate deadlines are suspended pending further order from this court.