Frankie Bertolo Mercado v. State
01-16-00705-CR
| Tex. App. | Dec 8, 2016Background
- Frankie Bartolo Mercado pleaded guilty to two counts of aggravated robbery (deadly weapon) under plea bargains in Harris County trial court cases Nos. 1431364 and 1431388.
- Under the plea agreements, the State agreed to recommend concurrent 15-year sentences; the trial court assessed 15 years' confinement in each case on February 1, 2016.
- Mercado did not file a motion for new trial and did not timely file a notice of appeal within 30 days after sentencing.
- Mercado filed a pro se combined notice of appeal on August 23, 2016 — over six months after judgment — and also submitted various pro se motions and a pro se brief to the court of appeals.
- The trial court certifications indicated these were plea-bargained cases and stated Mercado had no right of appeal; special clerk’s records in this Court supported those certifications.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the appeal timely filed to vest the court of appeals with jurisdiction? | Mercado argued via pro se filings (implicitly) that appellate review should proceed despite late filing. | State argued the notice of appeal was untimely and thus deprived the court of jurisdiction. | Appeal dismissed for want of jurisdiction due to untimely notice of appeal. |
| Did any filing extend the time to appeal? | Mercado filed post-judgment motions and letters (including for extension and bail). | State argued no timely motion for new trial or extension was filed within Rule 26.2 deadlines. | No timely motion for new trial or extension was filed; deadlines not met. |
| Did the trial court’s certifications allow an appeal? | Mercado sought appellate consideration despite certifications. | State relied on certifications showing plea bargain and no right of appeal. | Even if timely, certifications and clerk’s records showed no right to appeal; dismissal warranted. |
| Should pending pro se motions be decided? | Mercado’s pro se motions requested relief (bail, extension, briefing). | State implicitly argued procedural defects moot appellate motions. | All pending motions dismissed as moot following dismissal of appeals. |
Key Cases Cited
- Slaton v. State, 981 S.W.2d 208 (Tex. Crim. App. 1998) (timely notice of appeal is essential to vest appellate jurisdiction)
- Olivo v. State, 918 S.W.2d 519 (Tex. Crim. App. 1996) (untimely perfection of appeal deprives court of appeals of jurisdiction)
- Dears v. State, 154 S.W.3d 610 (Tex. Crim. App. 2005) (trial-court certifications and clerk’s records control right to appeal in plea-bargained cases)