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Fourth Court of Appeals
San Antonio, Texas
June 1, 2022
No. 04-22-00285-CR
Elijah Walter JOHNSON,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2022CR1061
Honorable Catherine Torres-Stahl, Judge Presiding
ORDER
Appellant Elijah Walter Johnson seeks to appeal the trial court’s judgment of conviction.
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). The record shows the trial court imposed
sentence in accordance with the agreement on February 28, 2022. Because Johnson did not file a
motion for new trial, his notice of appeal was due by March 30, 2022 or a notice and motion for
extension of time was due fifteen days later. See TEX. R. APP. P. 26.2(a)(1), 26.3. Johnson did
not file his notice of appeal until April 27, 2022, and he did not file a motion for extension of
time. See id. R. 26.3.
The record also shows Johnson entered into a plea bargain with the State pursuant to
which he pleaded nolo contedere to the offense of theft under $2500 enhanced. The record
includes the trial court’s Rule 25.2(a)(2) certification stating “this criminal case is a plea-bargain
case, and the defendant has NO right of appeal.” This court 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. R. 25.2(d). The record establishes the punishment assessed by the 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 also appears to support the trial court’s certification that Johnson 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).
Having reviewed the record, it appears the notice of appeal was untimely filed and
Johnson does not have the right to appeal. We therefore order Johnson to file a response, by
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July 1, 2022, establishing: (1) the notice of appeal was timely filed and (2) an amended
certification showing he has the right to appeal has been made part of the appellate record. See
id. TEX. R. APP. P. 25.2(d), 37.1; 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).
If a supplemental clerk’s record is required to show the appeal is timely and Johnson has
the right to appeal, Johnson must request a supplemental record from the trial court clerk and file
a copy of the request with this court. If appellant fails to satisfactorily respond to this order
within the time provided, the appeal will be dismissed.
_________________________________
Luz Elena D. Chapa, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 1st day of June, 2022.
___________________________________
MICHAEL A. CRUZ, Clerk of Court