Jermiah Joseph Delao v. the State of Texas ( 2024 )

Opinion filed April 11, 2024
In The
Eleventh Court of Appeals
___________
No. 11-24-00055-CR
___________
JERMIAH JOSEPH DELAO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 70th District Court
Ector County, Texas
Trial Court Cause No. A-20-0904-CR
MEMORANDUM OPINION
Appellant, Jermiah Joseph Delao, pleaded guilty to the first-degree felony
offense of aggravated kidnapping. See TEX. PENAL CODE ANN. § 20.04(a), (c) (West
2019). Pursuant to a plea bargain agreement between Appellant and the State, the
trial court sentenced Appellant to imprisonment in the Institutional Division of the
Texas Department of Criminal Justice for a term of fifteen years. Appellant filed an
untimely notice of appeal. We dismiss the appeal.
When this appeal was docketed, we notified Appellant by letter that his pro se
notice of appeal appeared to be untimely and that the trial court had certified that
(1) this is a plea bargain case in which Appellant has no right of appeal and
(2) Appellant had waived the right of appeal. See TEX. R. APP. P. 25.2(a)(2), (d),
26.2(a); see also TEX. CODE CRIM. PROC. ANN. art. 44.02 (West 2018). In our letter,
we requested that Appellant respond and show grounds to continue the appeal.
Appellant has responded, but he has not shown grounds upon which this appeal may
continue.
Pursuant to the Texas Rules of Appellate Procedure, a notice of appeal must
be filed either (1) within thirty days after the date that sentence is imposed in open
court or (2) if the defendant timely files a motion for new trial, within ninety days
after the date that sentence is imposed in open court. TEX. R. APP. P. 26.2(a). A
notice of appeal must be in writing and filed with the clerk of the trial court. TEX. R.
APP. P. 25.2(c)(1). Appellant waived his right to file a motion for new trial, did not
file a motion for new trial, and filed his pro se notice of appeal more than thirty days
after his sentence was imposed. The notice of appeal was therefore untimely.
Absent a timely filed notice of appeal or the granting of a timely motion for extension
of time, 1 we do not have jurisdiction to entertain this appeal. Slaton v. State, 981
S.W.2d 208, 210 (Tex. Crim. App. 1998); Olivo v. State, 918 S.W.2d 519, 522–23
(Tex. Crim. App. 1996); Rodarte v. State, 860 S.W.2d 108, 110 (Tex. Crim. App.
1993).
1
Appellant’s pro se response includes a motion for extension of time to file the notice of appeal.
Appellant’s notice of appeal was due on September 1, 2022. See TEX. R. APP. P. 26.2(a)(1). Therefore,
any motion to extend the deadline to file a notice of appeal was due on September 18, 2022. Id. R. 26.3.
To the extent his motion could be construed as a request that we grant him an out-of-time appeal, we are
not authorized to grant such a request. The Texas Court of Criminal Appeals is the only court with
jurisdiction to consider a motion for an out-of-time appeal. See Ater v. Eighth Ct. of Appeals, 802 S.W.2d
241, 243 (Tex. Crim. App. 1991) (orig. proceeding).
2
Furthermore, Rule 25.2(a)(2) provides that, in a plea bargain case in which
the punishment imposed does not exceed the punishment agreed to by the parties in
the plea bargain, “a defendant may appeal only: (A) those matters that were raised
by written motion filed and ruled on before trial, (B) after getting the trial court’s
permission to appeal, or (C) where the specific appeal is expressly authorized by
statute.” TEX. R. APP. P. 25.2(a)(2). Subsections (A), (B), and (C) are not applicable
here. We note that Rule 25.2 does not permit a plea-bargaining defendant to appeal
matters related to the voluntariness of the plea bargain unless the defendant has
obtained the trial court’s permission to appeal. See Cooper v. State, 45 S.W.3d 77,
83 (Tex. Crim. App. 2001); Carender v. State, 155 S.W.3d 929, 931 (Tex. App.—
Dallas 2005, no pet.).
The documents on file in this appeal show that Appellant entered into a plea
bargain, that his punishment was assessed by the trial court in accordance with the
plea bargain, and that he waived his right of appeal. Further, the trial court certified
that Appellant has no right of appeal. The trial court’s certification was signed by
Appellant, Appellant’s trial counsel, and the presiding judge of the trial court. The
documents on file in this court support the trial court’s certification. See Dears v.
State, 154 S.W.3d 610, 613–14 (Tex. Crim. App. 2005).
Thus, even if Appellant had timely perfected an appeal, the appeal would have
been prohibited by Rule 25.2 of the Texas Rules of Appellate Procedure, which
provides that an appellate court must dismiss an appeal without further action when
there is no certification showing that the defendant has the right of appeal. TEX. R.
APP. P. 25.2(d); Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006).
3
We dismiss the appeal for want of jurisdiction.
JOHN M. BAILEY
CHIEF JUSTICE
April 11, 2024
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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