Opinion
NO. 01-17-00189-CR
07-25-2017
KEITH DEWAYNE DILLINGHAM, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court Harris County, Texas
Trial Court Case No. 1363098
MEMORANDUM OPINION
Appellant, Keith Dewayne Dillingham, pleaded guilty to the first degree felony offense of murder. On October 21, 2013, in accordance with appellant's plea agreement with the State, the trial court entered its judgment of conviction finding appellant guilty and sentencing him to fifty years' imprisonment. The trial court certified that this was a plea-bargain case and that appellant has no right of appeal. See TEX. R. APP. P. 25.2(a)(2). On March 6, 2017, appellant filed a pro se notice of appeal. We dismiss the appeal for want of jurisdiction.
In a criminal case, a defendant's notice of appeal is due within thirty days after sentence is imposed in open court or the trial court enters an appealable order. See TEX. R. APP. P. 26.2(a)(1). The deadline to file a notice of appeal is extended to ninety days after the sentence is imposed if the defendant timely files a motion for new trial. See TEX. R. APP. P. 26.2(a)(2). The time for filing a notice of appeal may be further extended if, within fifteen days of deadline for filing the notice of appeal, appellant files the notice of appeal and a motion complying with Rule 10.5(b). TEX. R. APP. P. 26.3.
The trial court's judgment of conviction sentencing appellant to fifty years' imprisonment for the offense of murder was signed on October 21, 2013. Appellant's notice of appeal filed on March 6, 2017, almost three and a half years after the judgment of conviction, was untimely. See TEX. R. APP. P. 26.2. This Court has no authority to allow the late filing of a notice of appeal except as provided by Rule 26.3. See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). If an appeal is not timely perfected, a court of appeals does not obtain jurisdiction to address the merits of the appeal and can take no action other than to dismiss the appeal. See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998). Because appellant's notice of appeal was untimely, we have no basis for jurisdiction over this appeal. See Slaton, 981 S.W.2d at 210; Olivo, 918 S.W.2d at 522.
Moreover, in a plea-bargain case, a defendant may only appeal those matters that were raised by written motion filed and ruled on before trial or after getting the trial court's permission to appeal. TEX. CODE CRIM. PROC. ANN. art. 44.02 (West 2006); TEX. R. APP. P. 25.2(a)(2). An appeal must be dismissed if a certification showing that the defendant has the right of appeal has not been made part of the record. TEX. R. APP. P. 25.2(d); see Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005). Here, the clerk's record supports the trial court's certification that this is a plea-bargain case and that appellant has no right of appeal. See TEX. R. APP. P. 25.2(a)(2), (d); Dears, 154 S.W.3d at 615. Because appellant has no right of appeal, we must dismiss this appeal without further action. 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), must dismiss a prohibited appeal without further action, regardless of the basis for the appeal.").
Accordingly, we dismiss the appeal for want of jurisdiction. TEX. R. APP. P. 42.3(a), 43.2(f). We dismiss any 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).