Traywann Holloway v. State ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00387-CR
NO. 02-15-00388-CR
NO. 02-15-00389-CR
TRAYWANN HOLLOWAY APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
TRIAL COURT NOS. 1400024D, 1369784D, 1369783D
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MEMORANDUM OPINION 1
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On April 9, 2015, appellant Traywann Holloway pleaded guilty to and was
convicted of unlawful possession of a firearm, possession with the intent to
deliver between one and four grams of cocaine, and possession with the intent to
deliver between one and four grams of heroin. See Tex. Health & Safety Code
Ann. § 481.112(c) (West 2010); Tex. Penal Code Ann. § 46.04(a) (West 2011).
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See Tex. R. App. P. 47.4.
In each case, the trial court certified that Holloway had no right to appeal.
See Tex. R. App. P. 25.2(a)(2). We received Holloway’s notices of appeal from
the convictions on September 25, 2015, recorded the date of receipt on the
notices, and sent them to the trial court clerk for filing. See Tex. R. App. P.
25.2(c)(1); see also Taylor v. State, 424 S.W.3d 39, 44 (Tex. Crim. App. 2014)
(holding date of receipt in court of appeals and date subsequently filed in trial
court are operative dates for determining timeliness of notice of appeal). The
notices of appeal were filed in the trial court four days later. See Tex. R. App. P.
9.2(b); Taylor, 424 S.W.3d at 44.
On October 26, 2015, we notified Holloway that we did not believe we had
jurisdiction over his appeals because the notices of appeal had not been filed
timely and because the trial court had certified he had no right to appeal.
See Tex. R. App. P. 25.2(d), 26.2. We warned Appellant that we would dismiss
his appeals for want of jurisdiction unless he responded showing grounds to
continue the appeals. See Tex. R. App. P. 44.3. Appellant responded that his
notices were untimely because he received ineffective assistance of counsel and
requested that we appoint counsel to assist him and that we grant him out-of-
time appeals.
Our appellate jurisdiction is triggered through a timely filed notice of
appeal. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). If a notice
of appeal is not timely filed under Rule 26.2, we do not have jurisdiction to
address the merits of the appeal and may take no action—including granting an
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out-of-time appeal—other than dismissal. Slaton v. State, 981 S.W.2d 208, 210
(Tex. Crim. App. 1998). Rule 26.2(a) requires that a notice of appeal be filed
within thirty days after the date the trial court imposes sentence. Tex. R. App. P.
26.2(a). Holloway did not file his notices of appeal within thirty days of the trial
court’s imposition of sentences. Further, the trial court certified in each of the
causes Holloway is attempting to appeal that he had no right to appeal based on
his guilty pleas entered under a plea-bargain agreement, and Holloway has not
indicated that he is appealing from a ruling on a pretrial motion or that he gained
the trial court’s permission to appeal. See Tex. R. App. P. 25.2(a)(2), 25.2(d).
Holloway’s guilty pleas, therefore, bar our consideration of his appeals.
See Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006). For these
reasons, we dismiss the appeals for want of jurisdiction. See Tex. R. App. P.
43.2(f).
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: LIVINGSTON, C.J.; GABRIEL and SUDDERTH, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: November 19, 2015
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