Lee Vert Smith v. State ( 2008 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-08-00110-CR ______________________________



LEE VERT SMITH, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 5th Judicial District Court Bowie County, Texas Trial Court No. 06F0744-005

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Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Lee Vert Smith attempts to appeal his conviction for aggravated sexual assault of a child. Smith entered into a plea agreement and was sentenced in accordance therewith to twenty-five years' imprisonment.

The record contains a certification from the trial court that this "is a plea-bargain case, and the defendant has NO right of appeal." See Tex. R. App. P. 25.2.

Unless a certification, showing that a defendant has the right of appeal, is in the record, we must dismiss the appeal. See Tex. R. App. P. 25.2(d). Because the trial court's certification affirmatively shows Smith has no right of appeal, and because the record before us does not reflect that the certification is incorrect, see Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005), we must dismiss the appeal.

Accordingly, we dismiss the appeal for want of jurisdiction.

Josh R. Morriss, III

Chief Justice

Date Submitted: June 12, 2008

Date Decided: June 13, 2008

Do Not Publish

"> Vandver had thirty days after the day sentence was imposed to file a notice of appeal. See Tex. R. App. P. 26.2(a)(1). Therefore, Vandver had until December 14, 2007, to file a notice of appeal. This appeal is untimely and we are without jurisdiction to hear this case.

We dismiss this appeal for want of jurisdiction. ⁽¹⁾  

Jack Carter

Justice

Date Submitted: July 29, 2008

Date Decided: July 30, 2008

Do Not Publish  

1. We note that the trial entered a handwritten notation July 15, 2008, that the appeal was untimely filed. While the trial court was correct about the timeliness of the appeal, whether this Court has jurisdiction is an issue for this Court to determine. A trial court may in certain circumstances deny an appellant permission to appeal, but the court has no authority to deny the right of appeal in its entirety. Ex parte Zigmond, 933 S.W.2d 666 (Tex. App.--San Antonio 1996, no pet.); see Samaniego v. State, 952 S.W.2d 50, 51 n.2 (Tex. App.--San Antonio 1997, no pet.).