Opinion
No. 04-16-00600-CR
01-25-2017
Silver Starr HERNANDEZ, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2010CR9811
Honorable Mary D. Roman, Judge Presiding PER CURIAM Sitting: Marialyn Barnard, Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice DISMISSED FOR WANT OF JURISDICTION
The trial court imposed sentence in this appeal on October 1, 2012, and appellant did not file a motion for new trial. Because appellant did not file a timely motion for new trial, the deadline for filing a notice of appeal was October 31, 2012. See TEX. R. APP. P. 26.2(a)(1); see also TEX. R. APP. P. 4.1(a). A notice of appeal was not filed until September 14, 2016, and appellant did not timely file a motion for extension of time to file the notice of appeal. See TEX. R. APP. P. 26.3.
On November 30, 2016, we ordered appellant to file a written response showing cause why this appeal should not be dismissed for want of jurisdiction. See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996) (holding that timely notice of appeal is necessary to invoke court of appeals' jurisdiction). We advised appellant that if no satisfactory response was filed within the time provided, we would dismiss the appeal for want of jurisdiction.
In that same order, we noted that the trial court signed a certificate stating this "is a plea-bargain case, and the defendant has NO right of appeal." See TEX. R. APP. P. 25.2(a)(2). We therefore advised appellant that if we determined he filed a timely notice of appeal, this court is required to dismiss an appeal "if a certification that shows the defendant has the right of appeal has not been made part of the record." See TEX. R. APP. P. 25.2(d).
Appellant's counsel filed a response, admitting no timely notice of appeal was filed and this case is a plea bargain case in which the defendant has no right of appeal. Accordingly, because the notice of appeal was not timely filed, and no timely motion for extension of time was filed, we lack jurisdiction to entertain the appeal. See Olivo, 918 S.W.2d at 522; see also Ater v. Eighth Court of Appeals, 802 S.W.2d 241 (Tex. Crim. App. 1991) (explaining that writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure governs out-of-time appeals from felony convictions). We therefore dismiss the appeal for want of jurisdiction.
We could also dismiss the appeal pursuant to Rule 25.2(d), but given we lack jurisdiction, we dismiss on this basis.
PER CURIAM DO NOT PUBLISH