Timothy Edward Shaffer v. State ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-419-CR
TIMOTHY EDWARD SHAFFER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Timothy Edward Shaffer attempts to appeal his conviction for
sexual assault of a child under seventeen years of age for which he was
sentenced to twenty years’ confinement in a judgment dated March 27, 2007.
No motion for new trial was filed. Shaffer’s notice of appeal was due April 26,
2007, but was not filed until October 15, 2008.
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… See Tex. R. App. P. 47.4.
On November 17, 2008, we sent Shaffer a letter stating that the court
was concerned that it may not have jurisdiction over his appeal because his
notice of appeal was not timely filed. See Tex. R. App. P. 26.2. Our letter also
stated that the trial court’s certification stated that this is a plea-bargain case
and that Shaffer had no right of appeal. W e instructed Shaffer or any party
desiring to continue the appeal to file with the court a response showing
grounds for continuing the appeal. Neither Shaffer nor any other party filed a
response.
We therefore lack jurisdiction over Shaffer’s notice of appeal that was not
timely filed. See State v. Riewe, 13 S.W.3d 408, 410 (Tex. Crim. App. 2000)
(stating that appellate jurisdiction is invoked by giving timely and proper notice
of appeal). Moreover, even if Shaffer’s notice of appeal had been timely filed,
he had no right of appeal from his plea bargain. The Texas Rules of Appellate
Procedure are clear that in a plea-bargain case, an appellant may appeal only
“those matters that were raised by written motion filed and ruled on before
trial” or “after getting the trial court’s permission to appeal.” Tex. R. App. P.
25.2(a)(2). There is no exception for the trial court’s refusal to grant
permission to appeal. See Estrada v. State, 149 S.W.3d 280, 282 (Tex.
App.—Houston [1st Dist.] 2004, pet. ref’d). In this case, the trial court
certified that this “is a plea-bargain case, and the defendant has NO right of
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appeal.” Even if the notice of appeal had been timely, without a certification
from the trial court reflecting a right to appeal, we would have had to dismiss
the appeal. See Tex. R. App. P. 25.2(d); Vann v. State, No. 02-08-00332-CR,
2008 WL 4779601, at *1 (Tex. App.— Fort Worth Oct. 30, 2008, no pet.)
(mem. op., not designated for publication).
Having held that the notice of appeal is untimely, we dismiss Shaffer’s
appeal for lack of jurisdiction.
PER CURIAM
PANEL: WALKER, J.; CAYCE, C.J.; and MCCOY, J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 23, 2008
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