1... See Tex. R. App. P. 47.4.

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-08-332-CR

MICHAEL SEAN VANN APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 43RD DISTRICT COURT OF PARKER COUNTY

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MEMORANDUM OPINION1

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Appellant Michael Sean Vann attempts to appeal his conviction for

evading arrest with a motor vehicle for which he was sentenced to thirty-one

years’ confinement in a judgment dated June 10, 2008. Vann timely filed a

motion for new trial on July 9, 2008. Vann’s notice of appeal was due

September 8, 2008, but was not filed until September 22, 2008. The notice
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of appeal stated that Vann was appealing from “the judgment of conviction and

sentence.”

On September 24, 2008, we sent Vann a letter stating that the court was

concerned that it may not have jurisdiction over his appeal because his notice

of appeal was not timely filed. See Tex. R. App. P. 26.2. Our letter also stated

that the trial court’s certification stated that this is a plea-bargain case, that

Vann had no right of appeal, and that he had waived his right of appeal. We

instructed Vann or any party desiring to continue the appeal to file with the

court a response showing grounds for continuing the appeal.

Vann responded by filing an amended notice of appeal and a document

entitled “Appellant’s Response Showing Grounds for Continuing His Appeal.”

Vann’s response argued that his appeal was timely because his prior counsel

filed a motion to withdraw as attorney of record and included the following

statement, “Defendant wishes to pursue appellate remedies[,] and it is

necessary that another counsel be appointed who is not in conflict with

Defendant.” However, the motion was never filed in this court, and such

language does not constitute a sufficient notice of appeal. See Baez v. State,

235 S.W.3d 839, 841 (Tex. App.—Texarkana 2007, pet. ref’d) (holding that

language contained in motion to withdraw does not constitute a sufficient

notice of appeal under rule 25.2). We therefore lack jurisdiction over Vann’s
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notice of appeal that was not timely filed. See State v. Riewe, 13 S.W.3d 408,

410 (Tex. Crim. App. 2000) (stating that appellate jurisdiction is invoked by

giving timely and proper notice of appeal).

Moreover, even if Vann’s notice of appeal had been timely filed, he had

no right of appeal from his plea bargain. Although Vann amended his notice of

appeal to state that he was appealing from the trial court’s denial of his request

for permission to appeal the judgment and sentence, we find no provision giving

us jurisdiction over such an appeal. The Texas Rules of Appellate Procedure are

clear that in a plea-bargain case, an appellant may appeal only “those matters

that were raised by written motion filed and ruled on before trial” or “after

getting the trial court’s permission to appeal.” Tex. R. App. P. 25.2(a)(2).

There is no exception for the trial court’s refusal to grant permission to appeal.

See Estrada v. State, 149 S.W.3d 280, 282 (Tex. App.—Houston [1st Dist.]

2004, pet. ref’d). In this case, the trial court certified that this “is a pleabargain case, and the defendant has NO right of appeal” and that “the

defendant has waived the right of appeal.” Even if the notice of appeal had

been timely, without a certification from the trial court reflecting a right to

appeal, we would have had to dismiss the appeal. See Tex. R. App. P. 25.2(d).
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Having held that the notice of appeal is untimely, we dismiss Vann’s

appeal for lack of jurisdiction.

PER CURIAM

PANEL: WALKER, J.; CAYCE, C.J.; and MCCOY, J. 

DO NOT PUBLISH

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

DELIVERED: October 30, 2008