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Elmer Larez-Rivero v. the State of Texas
02-21-00200-CR
| Tex. App. | Apr 21, 2022
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Case Information

*1 In the Court of Appeals Second Appellate District of Texas

at Fort Worth ___________________________ No. 02-21-00200-CR ___________________________ E LMER L AREZ -R IVERO , Appellant V .

T HE S TATE OF T EXAS

On Appeal from the 462nd District Court

Denton County, Texas Trial Court No. F21-2054-462 Before Womack, Wallach, and Walker, JJ. Memorandum Opinion by Justice Womack *2 MEMORANDUM OPINION

Appellant Elmer Larez-Rivero attempts to appeal from his October 15, 2021 conviction for indecency with a child by contact. See Tex. Penal Code Ann. § 21.11. Because Larez-Rivero did not file a motion for new trial, his notice of appeal was due no later than November 15, 2021. Tex. R. App. P. 26.2(a)(1). Larez-Rivero ’s notice of appeal, however, was postmarked on November 18, 2021 — three days after the deadline and it was file-stamped by the trial-court clerk on December 6, 2021 — twenty-one days after the deadline. Cf. Tex. R. App. P. 9.2(b); Taylor v. State 424 S.W.3d 39, 46 (Tex. Crim. App. 2014).

Larez-Rivero s ability to appeal his conviction runs into further problems because it was made pursuant to a plea bargain. Larez-Rivero pleaded guilty to the underlying offense and signed a waiver of his right to appeal, and the trial court sentenced him accordingly. The trial court s certification of his right to appeal states that the case “ is a plea-bargain case, and the defendant has NO right of appeal ” and that “ the defendant has waived the right of appeal. ” Tex. R. App. P. 25.2(a)(2).

On March 22, 2022, we notified Larez-Rivero that it appeared we lacked jurisdiction over this appeal because his notice of appeal was not timely filed and because the trial court s certification reflected that he had no right of appeal. [1] We advised him that this appeal could be dismissed unless he or any party desiring to *3 continue the appeal filed a response showing grounds for continuing the appeal on or before April 1, 2022. Tex. R. App. P. 44.3. Although we received a response from Larez-Rivero, it does not address our jurisdictional concerns or show grounds for continuing the appeal.

A timely notice of appeal is essential to vest this court with jurisdiction. See Olivo v. State , 918 S.W.2d 519, 522 23 (Tex. Crim. App. 1996). Although we may extend the jurisdictional deadline if a notice of appeal is filed in the trial court within fifteen days of its due date, we may not do so in the absence of a motion requesting such relief. See Tex. R. App. P. 26.3; Olivo , 918 S.W.2d at 522; Kessinger v. State 26 S.W.3d 725, 726 (Tex. App. Fort Worth 2000, pet. ref ’ d) (per curiam). Here, Larez-Rivero did not file a motion for extension of time with his untimely notice of appeal.

Moreover, the right to appeal a conviction arising from a plea-bargain agreement is limited to matters that were raised by written motion filed and ruled upon before trial or to cases in which the appellant obtained the trial court s permission to appeal. Tex. Code Crim. Proc. Ann. art. 44.02; Tex. R. App. P. 25.2(a)(2). The trial court s certification in this case does not show that Larez- Rivero was granted permission to appeal, and the record does not indicate that Larez- Rivero intends to challenge a ruling on a written motion filed and ruled on before he pleaded guilty. Thus, because Larez-Rivero s appeal was untimely, and in accordance *4 with the trial court s certification, we dismiss Larez-Rivero s appeal. Tex. R. App. P. 25.2(d), 43.2(f); Olivo , 918 S.W.2d at 522 23.

/s/ Dana Womack Dana Womack Justice Do Not Publish

Tex. R. App. P. 47.2(b)

Delivered: April 21, 2022

[1] Prior to our March 22, 2022 letter, we questioned our jurisdiction over this appeal in two other letters to Larez-Rivero.

Case Details

Case Name: Elmer Larez-Rivero v. the State of Texas
Court Name: Court of Appeals of Texas
Date Published: Apr 21, 2022
Docket Number: 02-21-00200-CR
Court Abbreviation: Tex. App.
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