Gabriel Lara v. State

Fourth Court of Appeals
San Antonio, Texas
October 18, 2018
No. 04-18-00724-CR
Gabriel LARA,
Appellant
v.
The STATE of Texas,
Appellee
From the 379th Judicial District Court, Bexar County, Texas
Trial Court No. 2018CR8433W
Honorable Ron Rangel, Judge Presiding
ORDER
Pursuant to the terms of his plea-bargain agreement, Gabriel Lara pled nolo contendere to
aggravated assault with a deadly weapon. On August 14, 2018, Lara was placed on deferred
adjudication community supervision for a period of ten years. The trial court then signed a
certification of defendant’s right to appeal stating that this “is a plea-bargain case, and the
defendant has NO right of appeal.” See TEX. R. APP. P. 25.2(a)(2).
On October 9, 2018, Lara filed a Motion for Leave to File a Late Notice of Appeal.
Because the trial court signed the Order of Deferred Adjudication on August 14, 2018, the notice
of appeal was due to be filed on September 13, 2018. TEX. R. APP. P. 26.2(a). A motion for
extension of time to file the notice of appeal was due to be filed on September 28, 2018. TEX. R.
APP. P. 26.3. Lara did not file a timely notice of appeal or a motion for extension of time to file a
notice of appeal.
Lara requests that we grant him leave to file a late notice of appeal. However, we do not
have the authority to grant such leave, as we lack jurisdiction over an appeal of a criminal
conviction in the absence of a timely, written notice of appeal. Slaton v. State, 981 S.W.2d 208,
210 (Tex. Crim. App. 1998); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996).
Moreover, we note that even had Lara filed a timely notice of appeal, Texas Rule of
Appellate Procedure 25.2(d) would require this Court to dismiss his appeal. In a plea bargain
case ... a defendant may appeal only: (A) those matters that were raised by written motion filed
and ruled on before trial, or (B) after getting the trial court’s permission to appeal.” Id.
25.2(a)(2). In Hargesheimer v. State, 182 S.W.3d 906, 913 (Tex. Crim. App. 2006), the court of
criminal appeals held that “in a plea-bargain case for deferred adjudication community
supervision, the plea bargain is complete at the time the defendant enters his plea of guilty in
exchange for deferred adjudication community supervision.” Thus, Texas Rule of Appellate
Procedure 25.2(a)(2) “will restrict appeal only when the defendant appeals his placement on
deferred adjudication community supervision pursuant to the original plea.” Id. According to the
court, “[u]nder this circumstance, the trial judge certifying the defendant’s right of appeal may
designate the case on the certification form as ‘a plea-bargain case, and the defendant has NO
right of appeal.’” Id. If, however, the defendant filed written motions that were ruled on before
his placement on deferred adjudication community supervision pursuant to Rule 25.2(a)(2)(A),
or obtained permission from the trial court to appeal his placement on deferred adjudication
community supervision pursuant to Rule 25.2(a)(2)(B), then he would have a right to appeal. Id.
Here, the clerk’s record, which contains a written plea-bargain agreement, establishes that
in placing Lara on deferred adjudication community supervision, the trial court complied with
the plea-bargain agreement. Further, the clerk’s record does not include a written motion filed
and ruled upon before trial, nor does it indicate that the trial court gave its permission to appeal.
The trial court’s certification, therefore, appears to accurately reflect that this is a plea-bargain
case and that Lara does not have a right to appeal. See TEX. R. APP. P. 25.2(d) (requiring
appellate court to dismiss an appeal “if a certification that shows the defendant has the right of
appeal has not been made part of the record”).
Because Lara did not file a timely notice of appeal and because we do not have the
authority to grant his motion for leave to file a late notice of appeal, we ORDER appellant to
show cause on or before November 1, 2018 why this appeal should not be dismissed for lack of
jurisdiction. All appellate deadlines are suspended until further order of the court.
_________________________________
Karen Angelini, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 18th day of October, 2018.
___________________________________
Keith E. Hottle
Clerk of Court