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Lind v. State

Court of Appeals Sixth Appellate District of Texas at Texarkana
Jun 13, 2017
No. 06-17-00094-CR (Tex. App. Jun. 13, 2017)

Opinion

No. 06-17-00094-CR

06-13-2017

JOHNATHON CHAD LIND, Appellant v. THE STATE OF TEXAS, Appellee


On Appeal from the 6th District Court Lamar County, Texas
Trial Court No. 25997 Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION

Johnathon Chad Lind has filed an untimely notice of appeal from a conviction of possession, with the intent to deliver, more than four grams, but less than 200 grams, of a controlled substance. We dismiss the appeal for want of jurisdiction.

This Court may consider a direct appeal only if it is filed within the timetables set out by the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 25.2, 26.2. Under these Rules, a notice of appeal in a criminal case must be filed "within 30 days after the day sentence is imposed or suspended in open court." TEX. R. APP. P. 26.2(a)(1). That thirty-day deadline is extended to ninety days if a motion for new trial is timely filed in the trial court. TEX. R. APP. P. 26.2(a)(2). In the absence of a notice of appeal filed within that time frame, this Court has no jurisdiction to consider the appeal. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); see Slaton v. State, 981 S.W.2d 208, 209 n.3 (Tex. Crim. App. 1998) (per curiam).

In June 2016 and pursuant to a plea agreement with the State, Lind pled guilty to and was convicted of possessing, with the intent to deliver, more than four grams, but less than 200 grams, of a controlled substance. Lind's twenty-year sentence, which was recommended to the trial court in accord with Lind's plea agreement, was imposed on June 30, 2016. Consequently, because Lind did not file a motion for new trial in the trial court, his notice of appeal was due on or before July 30, 2016. Lind filed his notice of appeal on May 5, 2017, well beyond that deadline, making it untimely.

We also note that the trial court certified this case as a plea-bargain case in which Lind had no right of appeal. The Texas Legislature has granted a very limited right of appeal in plea-bargain cases. Rule 25.2 of the Texas Rules of Appellate Procedure details that right as follows:

(2) . . . . In a plea bargain case—that is, a case in which a defendant's plea was guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant—a defendant may appeal only:

(A) those matters that were raised by written motion filed and ruled on before trial, or

(B) after getting the trial court's permission to appeal.
TEX. R. APP. P. 25.2(a)(2). Further, this Court is required to dismiss an appeal if, as in this case, the trial court's certification indicates that there is no right of appeal. See TEX. R. APP. P. 25.2(d). Because this was a plea-bargain case in which the assessed punishment did not exceed the agreed-upon punishment recommendation, it does not appear that Lind had a right of appeal from his conviction. As a result, even if Lind had timely filed a notice of appeal, it appears that this Court would not have had jurisdiction over the appeal. See TEX. R. APP. P. 25.2(d).

We notified Lind by letter that his notice of appeal appeared to be untimely and that the appeal was subject to dismissal for want of jurisdiction. We gave Lind twenty days to respond to our letter and demonstrate how, notwithstanding the defects herein noted, we had jurisdiction over his appeal. Lind did not respond.

Because Lind did not timely file his notice of appeal and because such appeal, even had it been timely filed, was precluded by Lind's plea agreement, we dismiss this appeal for want of jurisdiction.

Bailey C. Moseley

Justice Date Submitted: June 12, 2017
Date Decided: June 13, 2017 Do Not Publish


Summaries of

Lind v. State

Court of Appeals Sixth Appellate District of Texas at Texarkana
Jun 13, 2017
No. 06-17-00094-CR (Tex. App. Jun. 13, 2017)
Case details for

Lind v. State

Case Details

Full title:JOHNATHON CHAD LIND, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals Sixth Appellate District of Texas at Texarkana

Date published: Jun 13, 2017

Citations

No. 06-17-00094-CR (Tex. App. Jun. 13, 2017)