Rick Earl Lewis v. the State of Texas ( 2024 )

Opinion filed May 9, 2024
In The
Eleventh Court of Appeals
___________
No. 11-24-00078-CR
___________
RICK EARL LEWIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 358th District Court
Ector County, Texas
Trial Court Cause No. D-21-1775-CR
MEMORANDUM OPINION
Appellant, Rick Earl Lewis, pleaded guilty to the second-degree felony
offense of aggravated assault with a deadly weapon. See TEX. PENAL CODE ANN.
§ 22.02(a)(2), (b) (West Supp. 2023). Pursuant to a plea bargain agreement between
Appellant and the State, the trial court sentenced Appellant to ten years’
imprisonment in the Institutional Division of the Texas Department of Criminal
Justice on August 26, 2022. Appellant filed an untimely notice of appeal from the
trial court’s judgment of conviction. 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. See TEX. R. APP. P. 26.2(a). In our letter,
we requested that Appellant respond and show grounds to continue the appeal.
Appellant’s counsel filed a response that confirms that (1) the appeal is untimely,
(2) this is a plea bargain case, (3) Appellant waived his right to appeal, and (4) there
are no grounds to continue the appeal.
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. Id. 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 did not file a motion for new trial, and Appellant filed his pro se notice of
appeal more than thirty days after his sentence was imposed in open court. 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, 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).
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, “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); see also TEX. CODE CRIM. PROC. ANN. art. 44.02 (West 2018).
Subsections (A), (B), and (C) are not applicable here. We note that Rule 25.2 does
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not permit a plea-bargaining defendant to appeal matters related to the voluntariness
of the plea 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, his 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); see
Dears, 154 S.W.3d at 613–14.
Accordingly, we dismiss the appeal.
W. STACY TROTTER
JUSTICE
May 9, 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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