Michael Kelly Walker v. State

Opinion filed December 12, 2019
In The
Eleventh Court of Appeals
___________
No. 11-19-00353-CR
___________
MICHAEL KELLY WALKER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 350th District Court
Taylor County, Texas
Trial Court Cause No. 13703-D
MEMORANDUM OPINION
Appellant, Michael Kelly Walker, has filed an untimely pro se notice of appeal
from a judgment of conviction for the offense of burglary of a habitation. Pursuant
to the terms of a plea agreement, the trial court assessed Appellant’s punishment at
confinement for ten years. We dismiss the appeal.
The documents on file in this appeal indicate that Appellant’s sentence was
imposed on October 4, 2019, and that his pro se notice of appeal was filed in the
district clerk’s office on November 14, 2019. When the appeal was filed in this
court, we notified Appellant that his notice of appeal was not timely and that the trial
court had certified that this was a plea-bargain case in which Appellant had no right
of appeal. We requested that Appellant respond to our letter and show grounds to
continue.
Appellant has filed a response, but he has not shown grounds upon which this
appeal may proceed. In his response, Appellant indicates that he filed a motion in
the trial court in which he requested that the trial court grant him an out-of-time
appeal. The trial court, however, is not authorized to grant an out-of-time appeal.
The Court of Criminal Appeals is the only court with jurisdiction to grant an out-of-
time appeal. See Ater v. Eighth Ct. of Appeals, 802 S.W.2d 241, 243 (Tex. Crim.
App. 1991) (orig. proceeding).
Pursuant to the Texas Rules of Appellate Procedure, a notice of appeal is due
to be filed either (1) within thirty days after the date that sentence is imposed or
suspended in open court or (2) if the defendant timely files a motion for new trial,
within ninety days after the date that sentence is imposed or suspended in open court.
TEX. R. APP. P. 26.2(a). A notice of appeal must be in writing and filed with the
clerk of the trial court. TEX. R. APP. P. 25.2(c)(1). The documents on file in this
court reflect that Appellant’s notice of appeal was filed with the clerk of the trial
court forty-one days after the sentence was suspended in open court and that no
motion for new trial was filed. The notice of appeal was therefore untimely.
We note that Appellant did not file a motion for extension in this court within
the prescribed fifteen-day period. See TEX. R. APP. P. 26.3(b). “When a notice of
appeal, but no motion for extension of time, is filed within the fifteen-day period,
the court of appeals lacks jurisdiction to dispose of the purported appeal in any
manner other than by dismissing it for lack of jurisdiction.” Olivo v. State, 918
S.W.2d 519, 523 (Tex. Crim. App. 1996). Absent a timely filed notice of appeal or
2
the granting of a timely motion for extension of time, we do not have jurisdiction to
entertain the appeal. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998);
Olivo, 918 S.W.2d at 522–23; Rodarte v. State, 860 S.W.2d 108, 110 (Tex. Crim.
App. 1993). Because we have no jurisdiction, we must dismiss the appeal.
Moreover, the trial court’s certification reflects that this is a plea-bargain case
and that Appellant has no right of appeal. Thus, even if Appellant had timely
perfected an appeal, this appeal would have been prohibited by Rule 25.2 of the
Texas Rules of Appellate Procedure, which provides that an appellate court must
dismiss an appeal without further action when there is no certification showing that
the defendant has the right of appeal. TEX. R. APP. P. 25.2(d); Chavez v. State, 183
S.W.3d 675, 680 (Tex. Crim. App. 2006); see Dears v. State, 154 S.W.3d 610, 613–
14 (Tex. Crim. App. 2005).
This appeal is dismissed for want of jurisdiction.
PER CURIAM
December 12, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1
Willson, J., not participating.
1
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
3