Angel Jonathan Koenigstein v. the State of Texas

Fourth Court of Appeals
San Antonio, Texas
October 19, 2022
No. 04-22-00684-CR
Angel Jonathan KOENIGSTEIN,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 2020CR6833
Honorable Michael E. Mery, Judge Presiding
ORDER
Appellant Angel Jonathan Koenigstein entered into a plea bargain with the State pursuant
to which he pleaded nolo contendere to murder. The trial court imposed sentence in accordance
with the agreement and signed a certificate stating this “is a plea-bargain case, and the defendant
has NO right of appeal.” See TEX. R. APP. P. 25.2(a)(2). Appellant filed a notice of appeal, and
the district clerk filed a copy of the clerk’s record, which includes the trial court’s Rule
25.2(a)(2) certification and a written plea bargain agreement. See id. R. 25.2(d). We must dismiss
an appeal “if a certification that shows the defendant has the right of appeal has not been made
part of the record.” Id. Here, because the clerk’s record establishes the punishment assessed by
the trial court does not exceed the punishment recommended by the prosecutor and agreed to by
the defendant, see id. R. 25.2(a)(2), the record supports the trial court’s certification that
appellant does not have a right to appeal. See Dears v. State, 154 S.W.3d 610 (Tex. Crim. App.
2005) (holding that court of appeals should review clerk’s record to determine whether trial
court’s certification is accurate).
Additionally, the trial court imposed sentence in the underlying cause on July 8, 2022.
Because appellant did not file a motion for new trial, the notice of appeal was due by August 8,
2022. TEX. R. APP. P. 26.2(a)(1). A motion for extension of time to file the notice of appeal was
due by August 22, 2022. See id. R. 26.3. Appellant filed a notice of appeal on October 6, 2022.
On the same day, he filed a motion for leave to file late notice of appeal in the trial court.
A timely notice of appeal is necessary to invoke a court of appeals’ jurisdiction. See
Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). A late notice of appeal may be
considered timely so as to invoke a court of appeals’ jurisdiction if: (1) it is filed within fifteen
days of the last day allowed for filing; (2) a motion for extension of time is filed in the court of
appeals within fifteen days of the last day allowed for filing the notice of appeal; and (3) the
court of appeals grants the motion for extension of time. See id.Having reviewed the record, it appears that both the notice of appeal and the motion for
extension of time were untimely filed. We therefore ORDER appellant to show cause in writing
why this appeal should not be dismissed for lack of jurisdiction by November 18, 2022. See id.;
see also Ater v. Eighth Court of Appeals, 802 S.W.2d 241 (Tex. Crim. App. 1991) (out-of-time
appeal from final felony conviction may be sought by filing a writ of habeas corpus pursuant to
article 11.07 of the Texas Code of Criminal Procedure). We further ORDER that this appeal will
be dismissed pursuant to Rule 25.2(d) of the Texas Rules of Appellate Procedure unless an
amended certification showing that appellant has the right to appeal is made part of the appellate
record by November 18, 2022. See TEX. R. APP. P. 25.2(d), 37.1; Daniels v. State, 110 S.W.3d
174 (Tex. App.—San Antonio 2003, order), disp. on merits, No. 04-03-00176-CR, 2003 WL
21508347 (July 2, 2003, pet. ref’d) (not designated for publication).
We ORDER all appellate deadlines are suspended until further order of the court. We
ORDER the clerk of this court to serve copies of this order on appellant, the attorneys of record,
and the court reporter.
_________________________________
Beth Watkins, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 19th day of October, 2022.
___________________________________
Michael A. Cruz,
Clerk of Court