# Fourth Cour t of Appeals

San Antonio, Texas

July 14, 2022

No. 04

- 22

- 00288

- CR

Elijah Walter JOHNSON

, Appellant

v.

The STATE of Texas, Appellee

From the 175th Judicial District Court

, Bexar County, Texas

Trial Court No. 2022CR1064
Honorable Catherine Torres

- Stahl

, Judge Presiding



### O R D E R

Pursuant to a plea bargain agreement, appellant Elijah Walter Johnson pled nolo

contendere to the fel ony offense of theft under $2,500 enhanced. The trial court found Johnson guilty and in accordance with his plea agreement, sentenced him to eighteen mont hs confinement, and imposed a fine of $1,000. Johnson now seeks to appeal the trial court’s judgment of conviction by filing a pro se notice of appeal from a negotiated plea.

A ti mely notice of appeal is n ecessary to invoke a court of appeals’ jurisdict ion. See
Olivo v. State , 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). The clerk’s record shows the trial court imposed sentence in accordance with the plea bargain agreement on Febr uary 28, 2022.
The clerk’ s record also shows Johnson did not file a motio n for new trial, making his notice of appeal due by March 30, 2022 or a motion for extension of time due fifteen days later. See T EX

. R. A P P

. P. 26.2(a)(1), 26.3. Johnson’s pro se notice of appeal, however, was not filed until April 27, 2022, and there i s nothing in the record indicating he received an extension of time to file his notice of appeal. See id . R. 26.3. The clerk’s record also did not include a trial court’s Rule

25.2 (a)(2) certification stati ng Johnson had a right to appeal, and we must dismiss an appeal “if a

ce rtification that shows the defendant has the right of appeal has not been made part of the
record.” Id . R. 25.2(d).

Because it appeared the notice of appe al was untimely filed and Johnson did not have the right to appeal, we ordered Johnson to file a r esponse establishing: (1) the notice of appeal was timely filed and (2) an amended certification showing he has the right to appeal has been made part of the appellate record. See id. R. 25.2(d), 37.1. We further o rdered Johnson to file asupplemental cl erk’s record if one was required to show his appeal was timely and he had a right

to appeal. On June 7, 2022 , the trial court clerk filed a supplemental cler k’s record containing

the trial court ’ s R u le 25.2 (a ) (2) showin g John had permission to appeal the plea bargain case. Two days later, the trial court clerk filed another supplem ental clerk ’ s record showing Johnson mailed his pro se notice of appeal to the Bexar County District Cler k’s Office

— Criminal Section on March 28, 2022, which was before the Marc h 30, 2022 due date. Johnson’s court

- appointed attorney then filed a response recognizing Johnson’s pro se notice of appeal was postmarked

before the notice of appeal’s due date, but concluding it was untimely under the prisoner mailbox
rule because it wa s not filed within ten days after the due date.

We disagree and conclude the pro se notice of appeal was timely fil ed under the prisoner

mailbox rule. Ac cording to the Texas Court of Criminal Appeals, under the prisoner mailbox rule, “a pro se prisoner is deemed to have filed his properly addressed no tice of appeal at the time it is delivered to the appropriate prison authorities for forwarding to the cler k of the convicting court. ” Campbell v. State , 320 S.W.3d 338 (Tex. Crim. App. 2010). We recognize the prisoner mailbox rule is still subject to th e requirements of Texas Rule of Appellate Procedure 9.2, but “[w]hen a defendant in custody files a pro se notice of appeal by mailin g it on or before the due date, the notice of appeal does not have to be received by the clerk within 10 days of the date w hen it was due per Rule 9.2(b)(1).” Carter v. State , No. 14

- 19

- 0008 8

- CR, 2021 WL 1134797 (Tex. App.

— Housto n [14th Dist.] Mar. 25, 20 21, no pet.) (mem .op.); see Anderson v. State , 625 S.W.3d 128, 131 (Tex. Crim. App. 2021). Here, Johnson’s pro se notice of appeal is postmarked before the notice of appeal due date, and li ke the Texas Court of Criminal Appeals, “we decline to penalize a pro se inmate who timely delivers a document to the prison mailbox.” Campbell , 320 S.W.3d at 344. We therefore conclude Johnson’s pro se notice of appeal was timely filed under the prisoner mailbox rule.

A ccordingly, b ecause a trial court certificate showing Johnson h as a right to appeal has been made part of the record, and J o hnson ’s notice of appeal is timely, we maint ain this appeal

on this court ’s docket. We also or der the reporter ’s record due by August 15, 2022

.

_________________________________ Luz Elena D. Chapa, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and aff ixed the seal of the said

court on this 14th day of July, 2022

.

___________________________________ M ichael A. C ruz , Clerk of Court