Marvin Frank Hall v. State ( 2015 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-15-00019-CR
MARVIN FRANK HALL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 8th District Court
Franklin County, Texas
Trial Court No. F8859
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Marvin Frank Hall pled guilty to and was convicted of the offense of driving while
intoxicated (3rd or more) and was sentenced to ten years’ incarceration. Hall’s sentence was
imposed September 5, 2014. Hall did not file a motion for new trial. Rather, Hall filed a motion
to withdraw his guilty plea, which was denied by the trial court. Hall filed his notice of appeal
December 29, 2014. The issue before us is whether Hall properly invoked this Court’s jurisdiction
by timely perfecting his appeal. Because we find that Hall’s notice of appeal was not timely filed
and because he waived his right to appeal, we also conclude that we are without jurisdiction to
hear the appeal.
A timely filed notice of appeal is necessary to invoke this Court’s jurisdiction. Olivo v.
State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Rule 26.2 of the Texas Rules of Appellate
Procedure prescribes the time period in which a notice of appeal must be filed to perfect an appeal
in a criminal case. See TEX. R. APP. P. 26.2. A criminal defendant’s notice of appeal is timely if
filed within thirty days after the date sentence is imposed or suspended or within ninety days after
sentencing if the defendant timely files a motion for new trial. TEX. R. APP. P. 26.2(a); Olivo,
918 S.W.2d at 522.
In this case, even if we were to treat Hall’s motion to withdraw his guilty plea as a motion
for new trial that extended Hall’s deadline for filing a notice of appeal, then the deadline for filing
that notice was December 4, 2014. See TEX. R. APP. P. 26.2(a)(2). The notice of appeal in this
matter was not mailed until December 29, 2014, twenty-five days after the deadline, making it
untimely.
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Even if Hall’s notice of appeal had been timely filed, we nevertheless would not have
jurisdiction over this appeal. This was a plea bargain case in which Hall waived any right of appeal
he might have had. 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, Hall did not have a right of appeal from his conviction. See
TEX. R. APP. P. 25.2(d).
By letter dated February 20, 2015, we notified Hall of these potential defects in our
jurisdiction and afforded him an opportunity to respond. Hall has not filed a response.
In light of the foregoing, we dismiss this appeal for want of jurisdiction.
Bailey C. Moseley
Justice
Date Submitted: April 30, 2015
Date Decided: May 1, 2015
Do Not Publish
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