MARTINEZ v. STATE (2017)

MEMORANDUM OPINION

DISMISSED FOR LACK OF JURISDICTION

Appellant pled nolo contendre to “assault-family-2nd offense (habitual)” and was sentenced within the terms of a plea bargain. The trial court imposed sentence on May 19, 2014. Appellant filed several pro se motions for judgment nunc pro tunc, the first on July 8, 2015. “A motion to modify, correct, or reform a judgment (as distinguished from motion to correct the record of a judgment under Rule 316), if filed, shall be filed and determined within the time prescribed by this rule for a motion for new trial and shall extend the trial court's plenary power and the time for perfecting an appeal in the same manner as a motion for new trial.” TEX. R. CIV. P. 329b(g). “A motion for new trial, if filed, shall be filed prior to or within thirty days after the judgment or other order complained of is signed.” TEX. R. CIV. P. 329b(a).

Because it appeared appellant did not timely file his motion for judgment nunc pro tunc, the notice of appeal was due to be filed July 21, 2014. TEX. R. APP. P. 26.2(a)(1). A motion for extension of time to file the notice of appeal was due on August 4, 2014. TEX. R. APP. P. 26.3. Appellant did not file a notice of appeal; instead, he filed a motion for leave to file a late notice of appeal on January 26, 2017. Accordingly, on February 27, 2017, this court ordered appellant to show cause in writing why this appeal should not be dismissed for lack of jurisdiction.

In our February 27 order, we also noted the trial court's Certification of Defendant's Right of Appeal stated this “is a plea-bargain case, and the defendant has NO right of appeal.” See TEX. R. APP. P. 25.2(a)(2). The clerk's record contains a written plea bargain and a written waiver of appeal, and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by appellant; therefore, the trial court's certification accurately reflected that appellant's case is a plea bargain case. See TEX. R. APP. P. 25.2(a)(2). Accordingly, in our February 27, 2017, order, we informed appellant that, if he demonstrated this court had jurisdiction, this appeal would nevertheless be dismissed pursuant to Texas Rule of Appellate Procedure 25.2(d), unless an amended trial court certification that showed he has the right of appeal was made part of the appellate record. See Daniels v. State, 110 S.W.3d 174 (Tex. App.—San Antonio 2003, order); TEX. R. APP. P. 25.2(d); 37.1.

Appellant has not responded to our order; therefore, this appeal is dismissed for lack of jurisdiction.

PER CURIAM