Opinion issued July 19, 2012.
In The
Court of Appeals
For The
First District of Texas
NO. 01-12-00377-CR
____________
WILLIAM KINCAID, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 339th District Court
Harris County, Texas
Trial Court Cause No. 1236182
MEMORANDUM OPINION
After a grand jury returned a true bill of indictment against him for the felony
offense of aggravated assault, 1 appellant, William Kincaid, Jr., pleaded guilty to the
misdemeanor offense of deadly conduct. 2 On February 28, 2012, the trial court
1
See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011).
2
See TEX. PENAL CODE ANN. § 22.05(a) (West 2011).
found appellant guilty and, in accordance with the terms of his plea agreement with
the State, sentenced him to confinement for one year in the county jail. On April
10, 2012, appellant filed a pro se notice of appeal. In his notice, appellant states
that he “did not wave [sic] his rights to appeal pretrial documents” and requests to
“be heard on all pretrial documents.”
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 March 29,
2012. See TEX. R. APP. P. 26.2(a)(1).
A notice of appeal that complies with the requirements of Rule 26 is essential
to vest this court with jurisdiction. See Slaton v. State, 981 S.W.2d 208, 210 (Tex.
Crim. App. 1998). 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
3
April 10, 2012 notice of appeal was untimely, we have no basis for jurisdiction
over this appeal. See Slaton, 981 S.W.2d at 210; Olivo, 918 S.W.2d at 523.
3
The record contains no envelope or postmark date for appellant’s notice of appeal,
which contains no certificate of service and is not dated. See TEX. R. APP. P.
2
Further, in a plea bargain case—that is, a case in which a defendant’s plea
was guilty or nolo contendere and the punishment did not exceed the punishment
recommended by the prosecutor and agreed to by the defendant—a defendant may
appeal only those matters that were raised by written motion 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); Dears v. State, 154
S.W.3d 610, 613 (Tex. Crim. App. 2005).
Here, the trial court’s certification is included in the record on appeal. The
trial court’s certification states that this is a plea-bargained case and that the
appellant has no right of appeal. See TEX. R. APP. P. 25.2(a)(2). The record reflects
that appellant pleaded guilty and that the trial court assessed the punishment
recommended by the State and to which appellant had agreed. See Shankle v. State,
119 S.W.3d 808, 813–14 (Tex. Crim. App. 2003) (holding that charge-bargain
constitutes punishment recommended by prosecutor and agreed to by defendant).
9.2(b), 26.2(a), 26.3; Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996).
Further, appellant has provided no evidence to show that he delivered his notice of
appeal to jail officials by March 29, 2012, which was 12 days prior to the date the
notice of appeal was file-stamped. See Campbell v. State, 320 S.W.3d 338, 344
(Tex. Crim. App. 2010) (“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.”).
3
Although the record contains matters raised by written motion filed before trial, the
trial court did not rule on those motions, 4 and appellant does not have the trial
court’s permission to appeal. See TEX. R. APP. P. 25.2(a)(2). Therefore, the record
supports the trial court’s certification, appellant has no right of appeal, and we must
dismiss this appeal “without further action.” Chavez v. State, 183 S.W.3d 675, 680
(Tex. Crim. App. 2006); see Dears, 154 S.W.3d at 615.
Accordingly, we dismiss the appeal for want of jurisdiction. We dismiss all
pending motions as moot.
PER CURIAM
Panel consists of Justices Higley, Sharp, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
4
The record does contain orders related to pretrial bail and an “Order Granting
Consolidation.” But any appeal from the pretrial bail orders would be moot and the
court’s order on the State’s motion to consolidate is nil, because the motion
effectively consolidated the cases upon its filing without the need for a court order.
See TEX. PENAL CODE ANN. § 3.02(b) (West 2011) (granting State right to join
multiple offenses arising from single criminal action by filing notice of joinder,
subject to defendant’s right to severance); Freeman v. State, 828 S.W.2d 179, 181–
82 (Tex. App.—Houston [14th Dist.] 1992, pet. ref’d) (“It is . . . axiomatic that the
issue of bail being set on a complaint is a moot issue after an appellant is
convicted.”).
4