Document Info

DocketNumber: 10-19-00392-CR

Filed Date: 11/20/2019

Status: Precedential

Modified Date: 11/21/2019

  •                                  IN THE
    TENTH COURT OF APPEALS
    No. 10-19-00392-CR
    SAMUEL ELBERT WINSTEAD,
    Appellant
    v.
    THE STATE OF TEXAS,
    Appellee
    From the 85th District Court
    Brazos County, Texas
    Trial Court No. 11-01531-CRF-85
    MEMORANDUM OPINION
    Appellant Samuel Elbert Winstead was convicted of assault family violence with
    priors in the 85th Judicial District Court of Brazos County, Texas. Winstead’s sentence
    was imposed on August 17, 2011, and the trial court signed the judgment on August 26,
    2011. The trial court additionally signed a Certification of Defendant’s Right of Appeal
    on August 17, 2011, indicating that this is a plea bargain case and that Winstead has
    waived his right to appeal. Winstead’s notice of appeal was filed on October 31, 2019,
    more than eight years after his sentence was imposed.
    We must dismiss an appeal “without further action, regardless of the basis for the
    appeal” if the trial court’s certification shows there is no right to appeal. See Chavez v.
    State, 
    183 S.W.3d 675
    , 680 (Tex. Crim. App. 2006); Monreal v. State, 
    99 S.W.3d 615
    , 622 (Tex.
    Crim. App. 2003) (holding that an appellant who has executed a waiver of appeal,
    whether negotiated or non-negotiated, could not appeal without securing the permission
    of the trial court). We additionally have no jurisdiction of an untimely appeal. See Olivo
    v. State, 
    918 S.W.2d 519
    , 522 (Tex. Crim. App. 1996) (no appellate jurisdiction where notice
    of appeal is untimely). Accordingly, the appeal is dismissed.
    Notwithstanding that we are dismissing this appeal, Winstead may file a motion
    for rehearing with this Court within fifteen (15) days after the judgment of this Court is
    rendered. See TEX. R. APP. P. 49.1. If Winstead desires to have the decision of this Court
    reviewed by filing a petition for discretionary review, that petition must be filed with the
    Court of Criminal Appeals within thirty (30) days after either the day this Court’s
    judgment is rendered or the day the last timely motion for rehearing is overruled by this
    Court. See TEX. R. APP. P. 68.2(a).
    REX D. DAVIS
    Justice
    Winstead v. State                                                                      Page 2
    Before Chief Justice Gray,
    Justice Davis, and
    Justice Neill
    Dismissed
    Opinion delivered and filed November 20, 2019
    Do not publish
    [CR25]
    Winstead v. State                               Page 3