Elmer Larez-Rivero v. the State of Texas
02-21-00200-CR
| Tex. App. | Apr 21, 2022Background
- Appellant Elmer Larez‑Rivero pleaded guilty pursuant to a plea bargain and was convicted on October 15, 2021 for indecency with a child by contact.
- He signed a written waiver of his right to appeal; the trial‑court certification states this is a plea‑bargain case and the defendant has NO right of appeal.
- No motion for new trial was filed; under Rule 26.2(a)(1) a notice of appeal was due by November 15, 2021.
- Larez‑Rivero’s notice of appeal was postmarked November 18, 2021 and file‑stamped by the clerk on December 6, 2021 — after the deadline — and he did not file a motion to extend.
- The court notified Larez‑Rivero it appeared to lack jurisdiction and gave him an opportunity to show grounds to continue; his response did not address the jurisdictional defects.
- The Court of Appeals dismissed the appeal for lack of jurisdiction based on untimely notice and the trial‑court certification showing no right to appeal.
Issues
| Issue | Larez‑Rivero's Argument | State's Argument | Held |
|---|---|---|---|
| Timeliness of notice of appeal | Filed notice (postmarked 11/18); offered no motion to extend or justification for lateness | Notice was due 11/15; untimely filing deprived court of jurisdiction; no extension motion was filed | Notice untimely; jurisdiction not vested; appeal dismissed |
| Right to appeal from plea‑bargain conviction | Attempted appeal despite plea bargain and waiver; did not show trial‑court permission or challenge pretrial rulings | Plea‑bargain waiver and trial‑court certification show no right to appeal; appeal limited to preserved pretrial rulings or granted permission | Certification controls; no right to appeal shown; appeal dismissed |
| Extension of appellate deadline | (No timely motion filed; no argument to invoke extension) | Court may not extend the jurisdictional deadline absent a timely motion requesting relief | No extension available; dismissal affirmed |
Key Cases Cited
- Taylor v. State, 424 S.W.3d 39 (Tex. Crim. App. 2014) (addresses filing/postmark issues for criminal notices of appeal)
- Olivo v. State, 918 S.W.2d 519 (Tex. Crim. App. 1996) (timely notice is jurisdictional; extension requires a motion)
- Kessinger v. State, 26 S.W.3d 725 (Tex. App.—Fort Worth 2000) (per curiam) (court may not extend the appellate deadline absent a motion)