David Amaya Velasquez v. State ( 2019 )

Opinion issued August 20, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-19-00135-CR
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DAVID AMAYA VELASQUEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 9
Harris County, Texas
Trial Court Case No. 2125491
MEMORANDUM OPINION
Appellant, David Amaya Velasquez, pleaded guilty to the misdemeanor
offense of assault on a family member. TEX. PENAL CODE § 22.01. In accordance
with the terms of a plea-bargain agreement, the trial court signed a judgment of
conviction imposing a sentence of thirty days’ confinement in the Harris County Jail
with credit for time served. Velasquez filed a notice of appeal.
In a plea bargain case, a defendant may only appeal 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. CODE CRIM. PROC. art. 44.02; TEX. R. APP. P. 25.2(a)(2).
An appeal must be dismissed if a certification showing that the defendant has the
right of appeal has not been made part of the record. TEX. R. APP. P. 25.2(d). Here,
the trial court’s certification is included in the record on appeal. See id. The trial
court’s certification states that this is a plea bargain case and that the defendant has
no right of appeal. See TEX. R. APP. P. 25.2(a)(2).
We also lack jurisdiction over this appeal because the notice of appeal was
untimely filed. The trial court’s judgment was signed on January 24, 2017. Appellant
did not file his notice of appeal until February 11, 2019.
In a criminal case, the notice of appeal must be filed within 30 days of the date
sentence is imposed. See TEX. R. APP. P. 26.2(a). An extension of time may be
granted if the defendant files the notice of appeal and a motion for extension within
fifteen days after the deadline for filing the notice of appeal. See TEX. R. APP. P.
26.3. Appellant did not file his notice of appeal until more than two years after
sentence was imposed. Absent a timely-filed notice of appeal, this Court lacks
jurisdiction. See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996).
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Because Velasquez has no right of appeal, we must dismiss this appeal. See
Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006) (“A court of appeals,
while having jurisdiction to ascertain whether an appellant who plea-bargained is
permitted to appeal by Rule 25.2(a)(2), must dismiss a prohibited appeal without
further action, regardless of the basis for the appeal.”). And, because Velasquez filed
an untimely notice of appeal, we lack jurisdiction over this appeal and must dismiss.
See Olivo, 918 S.W.2d at 526.
Accordingly, we dismiss the appeal. We dismiss any pending motions as
moot.
PER CURIAM
Panel consists of Justices Kelly, Hightower, and Countiss.
Do not publish. TEX. R. APP. P. 47.2(b).
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