Opinion issued March 25, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00032-CR
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ANTHONY MARCUS COLEMAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Case No. 1404520
MEMORANDUM OPINION
Appellant, Anthony Marcus Coleman, pleaded guilty to the state jail felony
offense of theft. See TEX. PENAL CODE ANN. § 31.03(a), (e)(4) (West Supp. 2013).
On November 11, 2013, the trial court found appellant guilty and, in accordance
with the terms of appellant’s plea bargain agreement with the State, sentenced
appellant to confinement for eight months. On December 19, 2013, appellant filed
a pro se notice of appeal. We dismiss the appeal.
In a plea bargain case, a defendant may only appeal those matters that were
raised by written motion filed and ruled on before trial or after getting the trial
court’s permission to appeal. TEX. CODE CRIM. PROC. ANN. art. 44.02 (West
2006); TEX. R. APP. P. 25.2(a)(2). An appeal must be dismissed if a certification
showing that the defendant has the right of appeal has not been made part of the
record. TEX. R. APP. P. 25.2(d).
Here, the trial court’s certification is included in the record on appeal. See id.
The trial court’s certification states that this is a plea bargain case and that the
defendant has no right of appeal. See TEX. R. APP. P. 25.2(a)(2). The record
supports the trial court’s certification. See Dears v. State, 154 S.W.3d 610, 615
(Tex. Crim. App. 2005). Because appellant has no right of appeal, we must
dismiss this appeal. See Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App.
2006) (“A court of appeals, while having jurisdiction to ascertain whether an
appellant who plea-bargained is permitted to appeal by Rule 25.2(a)(2), must
dismiss a prohibited appeal without further action, regardless of the basis for the
appeal.”).
Further, we cannot exercise jurisdiction over an appeal unless a notice of
appeal is filed in compliance Rule 26 of the Texas Rules of Appellate Procedure.
2
See TEX. R. APP. P. 26.2; Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App.
1998). Appellant did not file a motion for new trial or a motion for extension of
time to file his notice of appeal. See TEX. R. APP. P. 26.2(a)(2), 26.3(b); Olivo v.
State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996) (requiring both notice of
appeal and motion for extension to be filed within 15 days of original due date for
notice of appeal). Therefore, appellant’s notice of appeal was due on or before
December 11, 2013. See TEX. R. APP. P. 26.2(a)(1).
The Court of Criminal Appeals has expressly held that without a timely filed
notice of appeal we cannot exercise jurisdiction over an appeal. See Olivo, 918
S.W.2d at 522; see also Slaton, 981 S.W.2d at 210. Because appellant’s December
19, 2013 notice of appeal was untimely,1 we have no basis for jurisdiction over this
appeal. See Slaton, 981 S.W.2d at 210; Olivo, 918 S.W.2d at 523.
1
As a general matter, a notice of appeal is “filed” when it is physically delivered to
and received by the clerk of the trial court. Castillo v. State, 369 S.W.3d 196, 198
(Tex. Crim. App. 2012). However, the mailbox rule provides that a document
received within ten days after the filing deadline is considered timely filed if it was
“sent to the proper clerk” through the United States Postal Service, placed in a
“properly addressed” and stamped envelope, and deposited in the mail on or
before the last day of filing. TEX. R. APP. P. 9.2(b); Taylor v. State, No. PD-0180-
13, 2014 WL 440990, at *3 (Tex. Crim. App. Feb. 5, 2014). Here, the record
contains an envelope with a postmark date of December 17, 2013 for appellant’s
notice of appeal. Although appellant’s notice of appeal was received within ten
days of the filing deadline, it was not deposited in the mail before or on December
11, 2013. See TEX. R. APP. P. 9.2(b). Therefore, the mailbox rule does not apply.
See id. Further, appellant has provided no evidence to show that he delivered his
notice of appeal to jail officials by December 11, 2013, which was six days before
the notice of appeal was mailed and eight days before the notice of appeal was
file-stamped. See Campbell v. State, 320 S.W.3d 338, 344 (Tex. Crim. App. 2010)
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Accordingly, we dismiss the appeal for want of jurisdiction. We dismiss any
pending motions as moot.
PER CURIAM
Panel consists of Justices Jennings, Higley, and Sharp.
Do not publish. TEX. R. APP. P. 47.2(b).
(“We hold that the pleadings of pro se inmates shall be deemed filed at the time
they are delivered to prison authorities for forwarding to the court clerk.”).
4