Opinion
04-24-00117-CR
02-28-2024
Norma Lisa ELIZONDO, Appellant v. The STATE of Texas, Appellee
From the 187th Judicial District Court, Bexar County, Texas Trial Court No. 2023CR4167 Honorable Stephanie R. Boyd, Judge Presiding
ORDER
Luz Elena D. Chapa, Justice.
Appellant Norma Elizondo entered into a plea bargain with the State, and pled nolo contendere to a felony offense. On January 9, 2024, the trial court imposed sentence in accordance with the agreement and signed a certificate stating this "is a plea-bargain case, and the defendant has NO right of appeal" and "the defendant has waived the right of appeal." See Tex. R. App. P. 25.2(a)(2).
Appellant's notice of appeal was therefore due February 8, 2024, without a motion for new trial. See Tex. R. App. P. 26.2(a)(1) (stating notice of appeal must be filed within thirty days after sentence imposed); 26.2(a)(2) (stating notice of appeal must be filed within ninety days after sentence imposed if defendant timely files motion for new trial). The record does not show Elizondo filed a motion for a new trial. See id. R. 26.2. Appellant's notice of appeal is dated February 12, 2024 and mailed on February 13, 2024, and the record does not include a motion for an extension of time. See id. R. 26.3. A timely notice of appeal is necessary to invoke a court of appeals' jurisdiction. See Taylor v. State, 424 S.W.3d 39, 43 (Tex. Crim. App. 2014); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Accordingly, it appears the notice of appeal is untimely filed.
Further, Rule 25.2(a)(2) provides "[i]n 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." Tex.R.App.P. Rule 25.2(d) further provides 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). Here, the clerk's record establishes the punishment assessed by the court does not exceed the punishment recommended by the prosecutor and agreed to by the defendant. See id. 25.2(a)(2). The record also supports the trial court's certification that appellant does not have a right to appeal and has waived the 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).
We therefore order appellant to file a response, by March 29, 2024, establishing (1) the notice of appeal was timely filed and (2) an amended certification showing she has the right to appeal has been made part of the appellate record. See Tex. R. App. P. 25.2(d), 26.2, 26.3, 37.1. If a supplemental clerk's record is required to show appellant has the right to appeal and has an amended certification showing she has the right to appeal appellant must request a supplemental record from the trial court clerk and file a copy of the request with this court. If appellant fails to satisfactorily respond to this order within the time provided, the appeal will be dismissed.
We order all appellate deadlines suspended until further order of the court. We further order the clerk of this court to serve copies of this order on the attorneys of record and the court reporter.