Opinion
NO. 01-16-00975-CR
05-23-2017
ALBERTO HERNANDEZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court Harris County, Texas
Trial Court Case No. 1511814
MEMORANDUM OPINION
Appellant, Alberto Hernandez, pleaded guilty to the third-degree felony offense of felon in possession of a firearm, with the agreed punishment recommendation that he receive two years' confinement. On August 9, 2016, in accordance with the terms of his plea bargain with the State, the trial court found appellant guilty and assessed his punishment at two years' confinement. Appellant's counsel filed a motion for new trial, but did not file the notice of appeal until November 28, 2016. We dismiss this appeal for want of jurisdiction.
See TEX. PENAL CODE ANN. § 46.04(a)(2), (e) (West 2009).
See TEX. PENAL CODE ANN. § 12.34(a) (West 2009).
A criminal defendant's notice of appeal must be filed within thirty days after the sentence is imposed, or within ninety days after the sentence is imposed if the defendant has timely filed a motion for new trial. See TEX. R. APP. P. 26.2(a). The time for filing a notice of appeal may be extended if, within fifteen days of the deadline for filing the notice of appeal, an appellant files both a notice of appeal and a motion for an extension of time to file the notice of appeal. See id. 26.3; Douglas v. State, 987 S.W.2d 605, 606 (Tex. App.—Houston [1st Dist.] 1999, no pet.) ("The limited, 15-day extended time period applies to both the notice and the motion for extension; both must be filed within the 15-day time period."). A notice of appeal that complies with the requirements of rule 26 is essential to vest the court of appeals with jurisdiction. See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998); Olivo v. State, 918 S.W.2d 519, 522-23 (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. See Slaton, 981 S.W.2d at 210.
Here, the trial court signed appellant's judgment of conviction on August 9, 2016, and imposed the sentence on that date. Appellant timely filed a motion for new trial on September 8, 2016, extending the deadline to file his notice of appeal ninety days until November 7, 2016. See TEX. R. APP. P. 26.2(a)(2). Appellant's notice of appeal was not filed until November 28, 2016, more than ninety days after the sentence was imposed, and he did not file a motion for extension of time. Thus, under these circumstances, we can take no action other than to dismiss this appeal for want of jurisdiction. See Slaton, 981 S.W.2d at 210; Olivo, 918 S.W.2d at 526.
Moreover, even if appellant had timely appealed, this appeal must be dismissed because the trial court's certification stated that this was a plea-bargained case and that he had no right of appeal. See TEX. R. APP. P. 25.2(a)(2), (d). The clerk's record, filed in this Court on January 9, 2017, supports the trial court's certification. See Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005). Appellant filed a brief on the merits on May 10, 2017, that did not address jurisdiction.
Accordingly, we dismiss this appeal for want of jurisdiction. See TEX. R. APP. P. 43.2(f). We dismiss any pending motions as moot.
PER CURIAM Panel consists of Justices Higley, Bland, and Brown. Do not publish. TEX. R. APP. P. 47.2(b).