# Fourth Court of Appeals

San Antonio, Texas

October 18, 2018

No. 04

- 18

- 00724

- CR

Gabr iel LARA

, Appellant

v.

The STATE of Texas, Appellee

From the 379th Judicial District Court, Bexar County, Texas

Trial Court No. 2018CR8433W Honorable Ron Rangel, Judge Presiding



### O R D E R

Pursuant to the terms of his plea

- bargain agreement, Gabriel Lara pled nolo contendere to aggravated assault with a deadly weapon . O n August 14, 2018, Lara was placed on deferred adjudication community supervision for a period of ten years

. The trial court then signed a certification of defendant’s right to appeal stating that this “is a plea

- bargain case, and the defendant has NO right of appeal.” See T EX

. R. A PP

. P. 25.2(a)(2).

On October 9, 2018, Lara filed a Motion for Leave t o File a Late Notice of Appeal. Because the trial court signed the Order of Deferred Adjudication on August 14, 2018, the notice of appeal was due to be filed on September 13, 2018. T EX

. R. A PP

. P. 26.2(a). A motion for

extension of time to file the notice of appeal was due to be filed on September 28, 2018

. T EX

. R.

A PP

. P. 26.3. Lara did not file a timely notice of appeal or a motion for extension of time to file a notice of appeal.

Lara requests that we grant him leave to file a late n otice of appeal. However, w e do not have the authority to grant such leave, as we lack jurisdiction over an appeal of a criminal conviction in the absence of a timely, written notice of appeal. Slaton v. State , 981 S.W.2d 208, 210 (Tex. Crim. App. 1998); O livo v. State , 918 S.W.2d 5 19, 522 (Tex. Crim. App. 1996).

Moreover, we note that even had Lara filed a timely notice of appeal, Texas Rule of Appellate Procedure 25.2(d) would require this Court to dismiss his appeal. In a plea bargain

case ... a defend ant may appeal only: (A) those matters that were raised by written motion filedand ruled on before trial, or (B) after getting the trial court’s permission to appeal.” Id.

25.2(a)(2). In Hargesheimer v. State , 182 S.W.3d 906, 913 (Tex. Crim. App. 2006), t he court of criminal appeals held that “in a plea

- bargain case for deferred adjudication community supervision, the plea bargain is complete at the time the defendant enters his plea of guilty in exchange for deferred adjudication community supervision.” T hus, Texas Rule of Appellate Procedure 25.2(a)(2) “will restrict appeal only when the defendant appeals his placement on deferred adjudication community supervision pursuant to the original plea.” Id. According to the court, “[u]nder this circumstance, the trial judge certifying the defendant’s right of appeal may designate the case on the certification form as ‘a plea

- bargain case, and the defendant has NO right of appeal.’” Id. If, however, the defendant filed written motions that were ruled on before

his placement on deferred adjudication community supervision pursuant to Rule 25.2(a)(2)(A), or obtained permission from the trial court to appeal his placement on deferred adjudication community supervision pursuant to Rule 25.2(a)(2)(B), then he would have a right to appeal. Id.

Here, the clerk’s record, which contains a written plea

- bargain agreement, establishes that in placing Lara on deferred adjudication community supervision, the trial court complied with the plea

- bargain agreement. Further, the clerk’s record does not include a written motion filed and ruled upon before trial, nor does it indicate that the trial court gave its permission to appeal. The trial court’s certification, therefore, appears to accurately reflect that this is a plea

- barga in

case and that Lara does not have a right to appeal. See T EX

. R. A PP

. P. 25.2(d) (requiring appellate court to dismiss an appeal “if a certification that shows the defendant has the right of appeal has n ot been made part of the record”).

Because Lara di d not file a timely notice of appeal and because we do not have the authority to grant his motion for leave to file a late notice of appeal, we ORDER appellant to

show cause on or before November 1, 2018 why this appeal should not be dismissed for lack of jurisdiction. All appellate deadlines are suspended until further order of the court.

_________________________________ Karen Angelini, Justice

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

court on this 18th day of October, 2018

.

___________________________________ K eith E. H ottle

Clerk of Court