Opinion
04-22-00327-CR
06-22-2022
Brent Eugene BAILEY, Appellant v. The STATE of Texas, Appellee
From the 186th Judicial District Court, Bexar County, Texas Trial Court No. 2018CR11769 Honorable Jefferson Moore, Judge Presiding
ORDER
Irene Rios, Justice.
Pursuant to a plea bargain agreement, the trial court imposed sentence in the underlying cause on February 21, 2019. Because appellant did not file a motion for new trial, the notice of appeal was due to be filed March 25, 2019. Tex.R.App.P. 26.2(a)(1). A motion for extension of time to file the notice of appeal was due on April 8, 2019. Tex.R.App.P. 26.3. On November 29, 2021, appellant filed a pro se "Motion for Leave to File Late Notice of Appeal." On May 27, 2022, the trial court appointed Michael Young of the Bexar County Public Defender's Office as appellate counsel.
Appellant did not file a notice of appeal and the record does not contain an order granting his motion for leave. A timely notice of appeal is necessary to invoke a court of appeals' jurisdiction. See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). A late notice of appeal may be considered timely so as to invoke a court of appeals' jurisdiction if (1) it is filed within fifteen days of the last day allowed for filing, (2) a motion for extension of time is filed in the court of appeals within fifteen days of the last day allowed for filing the notice of appeal, and (3) the court of appeals grants the motion for extension of time. See id. Having reviewed the record, it appears the "Motion for Leave to File Late Notice of Appeal" was untimely filed. It is therefore ORDERED that appellant show cause in writing no later than July 7, 2022 why this appeal should not be dismissed for lack of jurisdiction. See id.; see also Ater v. Eighth Court of Appeals, 802 S.W.2d 241 (Tex. Crim. App. 1991)(out-of-time appeal from final felony conviction may be sought by filing a writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure).
Although it appears we lack jurisdiction over this appeal, we also note the trial court's February 21, 2019 certification in this appeal states, "this criminal case is a plea-bargain case, and the defendant has NO right of appeal" and "defendant has waived the right of appeal." The clerk's record contains a written plea bargain, and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant; therefore, the trial court's certification accurately reflects that the criminal case is a plea-bargain case. See TEX. R. APP. P. 25.2(A)(2). Rule 25.2(d) of the Texas Rules of Appellate Procedure provides: “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.” TEX. R. APP. P. 25.2(D). If this appeal is not otherwise dismissed for lack of jurisdiction, it is therefore ORDERED that this appeal will be dismissed pursuant to Rule 25.2(d) unless appellant causes an amended trial court certification to be filed no later than July 22, 2022, showing appellant has the right of appeal. See TEX. R. APP. P. 25.2(D), 37.1; see also Dears v. State, 154 S.W.3d 610 (Tex. Crim. App. 2005); Daniels v. State, 110 S.W.3d 174 (Tex. App.-San Antonio 2003, no pet.).
All other appellate deadlines are suspended until further order of the court.