Opinion
04-24-00643-CR
10-07-2024
Demetriss Montel GREEN, Appellant v. The STATE of Texas, Appellee
From the 25th Judicial District Court, Guadalupe County, Texas Trial Court No. 23-1922-CR-B Honorable Gary L. Steel, Judge Presiding
ORDER
Irene Rios, Justice.
Appellant attempts to appeal his conviction of possessing a controlled substance with intent to deliver in an amount of one gram or more but less than four grams. The trial court imposed sentence on July 17, 2024. Because appellant did not file a motion for new trial, the notice of appeal was due to be filed on August 16, 2024. Tex.R.App.P. 26.2(a)(1). A motion for extension of time to file the notice of appeal was due on September 3, 2024. Tex.R.App.P. 26.3. The record reflects appellant did not file a motion for extension of time to file his notice of appeal, and appellant did not put his notice of appeal in the mail until September 5, 2024.
"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 October 21, 2024 why this appeal should not be dismissed for lack of jurisdiction.
Moreover, appellant pled guilty to the possession with intent to deliver a controlled substance. The trial court assessed punishment at ten years' imprisonment and restitution in the amount of $180. On March 27, 2024, 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).
Generally, in a plea bargain case, a defendant may appeal only: (1) those matters that were raised by written motion filed and ruled on before trial; (2) after getting the trial court's permission to appeal; or (3) where the specific appeal is expressly authorized by statute. See id. 25.2(a)(2). The clerk's record, which contains a written plea bargain, establishes the punishment assessed by the court does not exceed the punishment recommended by the prosecutor and agreed to by the appellant. See id. 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 id. The trial court's certification, therefore, appears to accurately reflect that this is a plea-bargain case and that appellant does not have a right to appeal. 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).
Even if appellant is able to show that his notice of appeal was timely filed, 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 October 21, 2024. 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 appellate deadlines are suspended until further order of the court.