Opinion
NO. 03-17-00611-CR
03-02-2018
Jeffery D. Tolson, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
NO. 09-074-K277 , HONORABLE KEN ANDERSON, JUDGE PRESIDING MEMORANDUM OPINION
In 2009, Jeffery D. Tolson was convicted of aggravated sexual assault of a child and sentenced to 30 years' imprisonment. See Tex. Penal Code § 22.021(a); see also id. §§ 22.021(e) (providing that offense is first-degree felony), 12.32 (setting out permissible punishment range for first-degree felonies). In 2017, Tolson filed with the district court a motion to recuse or disqualify the judge that oversaw the trial proceedings and a motion for "After Trial Discovery." Tolson attached to those motions proposed orders, but the district court did not sign or otherwise act on them. Several weeks later, Tolson filed a notice of appeal. On January 26, 2018, we informed Tolson that it appeared as though his notice of appeal was not timely and requested that Tolson explain to this Court what trial court order or judgment was being appealed and how his notice of appeal was timely filed. In his response and in his notice of appeal, Tolson indicates that he is attempting to appeal the district court's failure to rule on his motions and failure to sign his proposed orders.
As set out above, the district court did not rule on the proposed motions, and we have been unable to find any support for the idea that the district court's inaction under the circumstances present here could qualify as entering an appealable order that could serve as a basis for invoking this Court's jurisdiction. See Tex. R. App. P. 26.2 (providing that "notice of appeal must be filed . . . within 30 days after the day sentence is imposed or suspended in open court[] or after the day the trial court enters an appealable order"). In addition, to the extent that Tolson is attempting to appeal his conviction, his appeal is untimely filed. See id. Moreover, the trial court's certification in the clerk's record reflects that this is a plea-bargain case and that Tolson waived his right of appeal. See id. R. 25.2.
For all of these reasons, we dismiss Tolson's appeal for want of jurisdiction. See id. R. 25.2(a)(2) (explaining that in plea-bargain context, defendant may only appeal "matters that were raised by written motion filed and ruled on before trial[] or . . . after getting the trial court's permission to appeal"), (d) (providing that "[t]he appeal must be dismissed if a certification that shows the defendant has the right of appeal has not been made part of the record"); see also Castillo v. State, 369 S.W.3d 196, 198 (Tex. Crim. App. 2012) (stating that "[t]imely filing of a written notice of appeal is a jurisdictional prerequisite to hearing an appeal. If a notice of appeal is not timely filed, the court of appeals has no option but to dismiss the appeal for lack of jurisdiction" (internal footnotes omitted)).
/s/_________
David Puryear, Justice Before Justices Puryear, Pemberton, and Bourland Dismissed for Want of Jurisdiction Filed: March 2, 2018 Do Not Publish