Dismissed and Memorandum Opinion filed July 27, 2017.
In The
Fourteenth Court of Appeals
NO. 14-17-00461-CR
MARQUIS ANDREW BRANCH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Cause No. 1530996
MEMORANDUM OPINION
Appellant Marquis Andrew Branch entered a plea of guilty to aggravated
robbery. Appellant and the State agreed that appellant’s punishment would not
exceed imprisonment for more than 40 years. In accordance with the terms of this
agreement with the State, on February 13, 2017, the trial court sentenced appellant
to confinement for 30 years in the Institutional Division of the Texas Department of
Criminal Justice. Appellant filed a notice of appeal on June 8, 2017.
We lack jurisdiction over this appeal for two reasons: the notice of appeal was
not filed timely, and this is a plea bargain case with no appealable matters and
appellant has not been granted permission to appeal.
First, a defendant’s notice of appeal must be filed within 30 days after
sentence is imposed when the defendant has not filed a motion for new trial. See
Tex. R. App. P. 26.2(a)(1). A notice of appeal that complies with the requirements
of Rule 26.2 is essential to vest the court of appeals with jurisdiction. Slaton v. State,
981 S.W.2d 208, 210 (Tex. Crim. App. 1998). If an appeal is not timely perfected, a
court of appeals does not obtain jurisdiction to address the merits of the appeal.
Under those circumstances it can take no action other than to dismiss the appeal. Id.
Appellant’s notice of appeal was filed 115 days after sentence was imposed.
Therefore, the appeal was not timely perfected, and we lack jurisdiction.
Second, an agreement that places a cap on punishment is a plea bargain for
purposes of Texas Rule of Appellate Procedure 25.2(a)(2). Shankle v. State, 119
S.W.3d 808, 813 (Tex. Crim. App. 2003) (sentence bargaining may be for
recommendations to the court on sentences, including a recommended “cap” on
sentencing). 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 matters raised by a written, pretrial motion or with the trial court’s
permission. Tex. R. App. P. 25.2(a)(2).
Appellant’s punishment of 30 years’ imprisonment does not exceed the agreed
cap of 40 years. The record does not contain any appealable pretrial rulings, and the
trial court did not grant appellant permission to appeal.1
1
The certification of appellant’s right to appeal incorrectly indicates this case is not a plea
bargain case and appellant has the right to appeal, but the record establishes the opposite. In such
a situation, we know of no authority that would require us to obtain an corrected certification
2
Accordingly, we DISMISS the appeal.
PER CURIAM
Panel consists of Justices Boyce, Donovan, and Jewell.
Do Not Publish — Tex. R. App. P. 47.2(b).
before dismissing the appeal. Barcenas v. State, 137 S.W.3d 865, 866 (Tex. App.—Houston [1st
Dist.] 2004, no pet.).
3