Kevin Arick O'Dell v. State ( 2021 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-20-00501-CR
Kevin Arick O’DELL,
Appellant
v.
The STATE of Texas,
Appellee
From the 198th Judicial District Court, Bandera County, Texas
Trial Court No. CR-XX-XXXXXXX
Honorable M. Rex Emerson, Judge Presiding
PER CURIAM
Sitting: Rebeca C. Martinez, Chief Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: January 27, 2021
DISMISSED FOR LACK OF JURISDICTION
On September 28, 2020, appellant Kevin Arick O’Dell filed with the trial court clerk a pro
se request for forms seeking to appeal an order of deferred adjudication. A copy of O’Dell’s
request for forms was filed with our court and docketed as a notice of appeal.
A timely notice of appeal is necessary to invoke this court’s jurisdiction. Olivo v. State,
918 S.W.2d 519, 522 (Tex. Crim. App. 1996). In absence of a timely motion for new trial, a
defendant must file a notice of appeal within thirty days after the day the trial court enters an
appealable order. TEX. R. APP. P. 26.2(a). A late notice of appeal may be considered timely so as
04-20-00501-CR
to invoke our jurisdiction if (1) it is filed within fifteen days of the last day allowed for filing, (2)
a motion for extension of time is filed in the court of appeals within fifteen days of the last day
allowed for filing the notice of appeal, and (3) the court of appeals grants the motion for extension
of time. See Olivo, 918 S.W.3d at 522.
In this case, the clerk’s record shows the trial court signed an order of deferred adjudication
pursuant to a plea bargain on February 12, 2020. O’Dell did not file either a timely motion for
new trial or motion for extension of time to file the notice of appeal. See TEX. R. APP. P. 26.2(a),
26.3. Therefore, his notice of appeal was due by March 13, 2020, but was not filed until September
28, 2020.
Because O’Dell did not timely file a notice of appeal, we ordered his court appointed
attorney to show cause why this appeal should not be dismissed for lack of jurisdiction. See TEX.
CODE CRIM. PROC. ANN. art 26.04 (providing court appointed counsel represents appellant until
his appeal is exhausted or until the trial court grants appointed counsel the right to withdraw and
appoints new counsel). Counsel filed a response admitting the notice of appeal is untimely and
this court does not have jurisdiction over this appeal.
Because O’Dell did not timely file the notice of appeal, we lack jurisdiction to entertain
this appeal. See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (holding that if
appeal is not timely perfected, court of appeals does not obtain jurisdiction to address merits of
appeal, and court may take no action other than to dismiss appeal; court may not suspend rules to
alter time for perfecting appeal); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); see
also Ater v. Eighth Court of Appeals, 802 S.W.2d 241 (Tex. Crim. App. 1991) (explaining that
writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure governs
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04-20-00501-CR
out-of-time appeals from felony convictions). We therefore dismiss this appeal for lack of
jurisdiction. 1
PER CURIAM
Do Not Publish
1
Even if appellant had timely appealed, this appeal must be dismissed because the trial court’s certification stated this
“is a plea-bargain case, and the defendant has NO right of appeal” and “the defendant has waived the right of appeal.”
See TEX. R. APP. P. 25.2(a)(2). The clerk’s record supports the trial court’s certification. See Dears v. State, 154
S.W.3d 610, 615 (Tex. Crim. App. 2005).
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