Fourth Court 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 felony offense of theft under $2,500 enhanced. The trial court found Johnson 

guilty and in accordance with his plea agreement, sentenced him to eighteen months 

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 timely notice of appeal is necessary to invoke a court of appeals’ jurisdiction. 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 February 28, 2022. 

The clerk’s record also shows Johnson did not file a motion 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 TEX.

R. APP. P. 26.2(a)(1), 26.3. Johnson’s pro se notice of appeal, however, was not filed until April 

27, 2022, and there is 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 stating Johnson had a right to appeal, and we must dismiss an appeal “if a 

certification 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 appeal was untimely filed and Johnson did not have the 

right to appeal, we ordered Johnson to file a response 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 ordered Johnson to file a 
supplemental clerk’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 clerk’s record containing

the trial court’s Rule 25.2(a)(2) showing John had permission to appeal the plea bargain case. 

Two days later, the trial court clerk filed another supplemental clerk’s record showing Johnson

mailed his pro se notice of appeal to the Bexar County District Clerk’s Office—Criminal Section 

on March 28, 2022, which was before the March 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 was not filed within ten days after the due date. 

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

mailbox rule. According to the Texas Court of Criminal Appeals, under the prisoner mailbox 

rule, “a pro se prisoner is deemed to have filed his properly addressed notice of appeal at the 

time it is delivered to the appropriate prison authorities for forwarding to the clerk 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 the requirements of Texas Rule of Appellate 

Procedure 9.2, but “[w]hen a defendant in custody files a pro se notice of appeal by mailing 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 when it was due per Rule 9.2(b)(1).” Carter v. State, No. 14-19-00088-CR, 

2021 WL 1134797 (Tex. App.—Houston [14th Dist.] Mar. 25, 2021, 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 like 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. 

Accordingly, because a trial court certificate showing Johnson has a right to appeal has 

been made part of the record, and Johnson’s notice of appeal is timely, we maintain this appeal 

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

_________________________________

Luz Elena D. Chapa, Justice

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

court on this 14th day of July, 2022.

___________________________________

Michael A. Cruz, 

Clerk of Court