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 2020-01

Michelle Rene McCarthy v. State ( 2020 )


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  • Dismiss; Opinion Filed January 27, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00009-CR
MICHELLE RENE MCCARTHY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F19-34762-V
MEMORANDUM OPINION
Before Justices Myers, Schenck, and Carlyle
Opinion by Justice Schenck
After being indicted for aggravated assault with a deadly weapon, Michelle Rene
McCarthy entered into a plea agreement with the State. Under the terms of the agreement,
appellant agreed to plead guilty in exchange for the State’s recommendation of three years
deferred community supervision and a $2,500 fine. On November 6, 2019, the trial court
admonished appellant, accepted her guilty plea, and assessed punishment in accordance with the
plea bargain agreement. The trial court also certified that appellant waived her right to appeal.
Appellant then filed her pro se notice of appeal in the trial court.
“Jurisdiction concerns the power of a court to hear and determine a case.” Olivo v. State,
    918 S.W.2d 519
    , 522 (Tex. Crim. App. 1996). The jurisdiction of an appellate court must be
legally invoked, and, if not, the power of the court to act is as absent as if it did not exist. See
    id. at 523. 
    The right to appeal in a criminal case is a statutorily created right. See McKinney v.
State,
    207 S.W.3d 366
    , 374 (Tex. Crim. App. 2006); Griffin v. State,
    145 S.W.3d 645
    , 646 (Tex.
Crim. App. 2004); see also TEX. CODE CRIM. PROC. ANN. art. 44.02 (West 2006) (providing right
of appeal for defendant); TEX. R. APP. P. 25.2(a)(2) (rules for appeal by defendant). A timely-
filed notice of appeal vests the courts of appeals with jurisdiction.
    Olivo, 918 S.W.2d at 522
    .
To be timely, appellant’s notice of appeal was due December 6, 2019. See TEX. R. APP.
P. 26.2(a)(2). Appellant’s handwritten notice of appeal, filed in the trial court, was dated
December 17 and postmarked December 19, 2019, outside the thirty-day period for filing a
notice of appeal. Because appellant’s notice of appeal is untimely, we lack jurisdiction over the
appeal. See Slaton v. State,
    981 S.W.2d 208
    , 210 (Tex. Crim. App. 1998);
    Olivo, 918 S.W.2d at 523
    .
We dismiss this appeal for want of jurisdiction.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
200009F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MICHELLE RENE MCCARTHY,                             On Appeal from the 292nd Judicial District
Appellant                                           Court, Dallas County, Texas
Trial Court Cause No. F19-34762-V.
No. 05-20-00009-CR         V.                       Opinion delivered by Justice Schenck,
Justices Myers and Carlyle participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, we DISMISS this appeal for want of
jurisdiction.
Judgment entered this 27th day of January, 2020.
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