Jose Manuel Nieto, Sr. v. the State of Texas

IN THE
TENTH COURT OF APPEALS
No. 10-21-00337-CR
JOSE MANUEL NIETO, SR.,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 12th District Court
Walker County, Texas
Trial Court No. 30,164
MEMORANDUM OPINION
Jose Manuel Nieto, Sr. pled guilty to and was convicted of possession of a deadly
weapon in a penal institution. See TEX. PENAL CODE § 46.10. He was sentenced to three
years in prison. Sentence was imposed in open Court on October 27, 2021.
After the time to file a notice of appeal had passed, Nieto informed his counsel that
Nieto wished to appeal. Pursuant to Rule 26.3 of the Texas Rules of Appellate Procedure
and Garza v. Idaho, ___ U.S. ___, 139 S. Ct. 738, 744, 746, 203 L. Ed. 2d 77 (2019),1 counsel
filed a notice of appeal in the trial court and a motion for extension of time to file a notice
of appeal with this Court within 15 days after the deadline for filing the notice of appeal.
TEX. R. APP. P. 26.3. We grant the motion for extension of time to file the notice of appeal
to the date it was filed, that being December 8, 2021. Accordingly, Nieto’s notice of appeal
is timely.
However, according to the trial court’s judgment and the certification of right of
appeal, Nieto pled guilty pursuant to a plea bargain and had no right of appeal. Further,
the trial court expressly denied in writing Nieto’s request for permission to appeal.
Because the trial court's certificate of right of appeal that Nieto signed indicates Nieto has
no right to appeal and because the trial court has specifically refused to give Nieto
permission to appeal, this appeal must be dismissed. See TEX. R. APP. P. 25.2(d) ("The
appeal must be dismissed if a certification that shows the defendant has the right of
appeal has not been made part of the record under these rules."); Chavez v. State, 183
S.W.3d 675, 680 (Tex. Crim. App. 2006) (plea bargain). See also TEX. R. APP. P. 25.2(a)(2)(B)
(“In a plea bargain case…a defendant may appeal only: (B) after getting the trial court’s
permission to appeal[.]”).
Notwithstanding that we are dismissing this appeal, Nieto may file a motion for
rehearing with this Court within fifteen days after the opinion and judgment of this Court
1
Noting that, in an ineffective assistance of counsel case, a defendant has "ultimate authority" to decide
whether to appeal and holding that courts presume prejudice when counsel's deficient performance
deprives defendant of appeal that he otherwise would have taken "even when the defendant has signed an
appeal waiver."
Nieto v. State Page 2
are rendered. See TEX. R. APP. P. 49.1. If Nieto 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 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
id. at 68.2(a).
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Motion granted
Appeal dismissed
Opinion delivered and filed December 22, 2021
Do not publish
[CR25]
Nieto v. State Page 3