Elias Martinez Vargas v. the State of Texas

IN THE
TENTH COURT OF APPEALS
No. 10-23-00183-CR
ELIAS MARTINEZ-VARGAS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2020-700-C1
MEMORANDUM OPINION
Elias Martinez-Vargas appeals his conviction of three counts of Aggravated Sexual
Assault of a Child. The judgments were signed on June 2, 2022. Martinez-Vargas’ notice
of appeal was due July 5, 2022. See TEX. R. APP. P. 26.2(a)(1). It's filing on June 21, 2023,
is untimely.
Martinez-Vargas also presented a motion for an extension of time to file his notice
of appeal. It is untimely as well. See id. 26.3. When both the notice of appeal and the
motion for extension of time to file a notice of appeal are untimely, we have no
jurisdiction to grant an out of time appeal; that authority belongs exclusively to the Court
of Criminal Appeals through a writ of habeas corpus. See Parr v. State, 206 S.W.3d 143,
144-45 (Tex. App.—Waco 2006, no pet.).
We have no jurisdiction of an untimely appeal, and this appeal must be dismissed.
See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996) (no appellate jurisdiction
where notice of appeal is untimely). Accordingly, this appeal is dismissed.1
Martinez-Vargas’ motion for leave and motion for extension of time are also
dismissed.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Appeal dismissed
Motions dismissed
Opinion delivered and filed July 26, 2023
Do not publish
[CR25]
1
Even if Martinez-Vargas’ notice of appeal was timely, this appeal would still be dismissed because
Martinez-Vargas pled guilty pursuant to a plea bargain and the trial court's certificate of right of appeal
indicates Martinez-Vargas has no right to appeal and has waived his right to appeal. 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); Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003) (waiver of appeal).
Martinez-Vargas v. State Page 2