T he State of



# Fourth Court of Appeals

**San Antonio, Texas**

June 30, 2014

N o. 04

- 14

- 00339

- CR and 04

- 14

- 00340

- CR

Eddie VASQUEZ

, Appellant

v.

The STATE of Texas, Appellee

From the 175th Judicial District Court, Bexar County, Texas

Trial Court No. 2014CR0910 and 2013CR11644

Hon orable Mary D. Roman, Judge Presiding



### ORDER

The trial court imposed sentence s in these appeals on March 20, 2014 , and appellant did

not file a motion for new trial. Because appellant did not file a timely motion for new trial, the deadline for filing a notice of appeal was April 22, 2014

. See T EX

. R. A PP

. P. 26.2(a)(1). A notice of appeal was not filed until April 2 4 , 2014 , and appellant did not file a motion for

extension of time t o file the notice of appeal. See T EX

. R. A PP

. P. 26.3.

A notice of appeal may appear to be late if filed by mail pursuant to Rule 9.2(b) of the Texas Rules of Appellate Procedure. See T EX

. R. A PP

. P. 9.2; Moore v. State , 840 S.W.2d 439 (Tex. Crim. App. 1992) (applying mailbox rule to filing of cost bond in appeal of criminal case);

Villarreal v. State , 199 S.W.3d 30 (Tex. App.

— San Antonio 2006, order), disp. on merits , No.

04

- 06

- 00022

- CR, 2007 WL 120625 (Tex. App.

— San Antonio Jan. 19, 2007, pet. ref’d) (holding

inmate ’ s notice of appeal was timely filed when delivered in a properly

- addressed envelope to jail authorities on or before the due date and received by clerk within ten days of filing deadline).

The certificate of service of the notice on the Be xar County District Attorney = s Office is dated April 17, 2014

. However, the notice of appeal does not indicate whether it was filed with the

clerk ’ s office by mail and the record does not contain a copy of an envelope bearing a postmark.

Based on the fo regoing, we ordered appellant to file a written response in this court] establishing that the notice of appeal was timely filed by mail or otherwise showing cause why

th e s e appeal s should not be dismissed for want of jurisdiction

. See Olivo v. State , 918 S.W.2d 519, 522 (Tex. Crim. App. 1996) (holding that timely notice of appeal is necessary to invoke court of appeals ’ jurisdiction). We advised appellant that if a supplemental clerk ’ s record isrequired to show jurisdiction, appellant must ask the trial court clerk to prepare one and must notify the clerk of this court that such a request was made.

In response, appellant filed a document in which he states his counsel inspected the

clerk’s record and found envelopes in which the notices of appeal had b een sent to both this court and the district clerk. According to counsel, both envelopes were postmarked April 22, 2014, which would make the notices of appeal timely. Per our order, appellant stated he filed a written request with the district clerk ask ing that the record be supplemented to include the envelopes in question. However, we have not received a supplemental clerk’s record containing

the documents.

Based on appellant’s assertions regarding the envelopes, we ORDER the district clerk to

file a supplemental clerk’s record with this court on or before July 10, 2014 , containing both notices of appeal with the envelopes in which they were mailed and appellant’s motion requesting the supplemental clerk’s record

.

In additio n to the jurisdictional issue

, we noted appellant entered into a plea bargain with

the State in each of these cases , pursuant to which appellant pleaded guilty to the offense s of “credit/debit card abuse (repeater).” As part of his plea bargain, appellant signed separate

“Waiver s of Appeal” that state:

I understand that upon my plea of guilty or nolo contendere, where the punishment does not exceed that recommended by the prosecutor and agreed to by me, my right to appeal will be limited to only: (1) thos e matters that were raised by written motion filed and ruled on before trial, or (2) other matters on which the trial court gives me permission to appeal. I understand that I have this limited right to appeal. However, as part of my plea bargain agreement in this case, I knowingly and voluntarily waive my right to appeal under (1) and (2) in exchange for the prosecutor’s recommendation, provided that the punishment assessed by the court does not exceed our agreement.

The trial court imposed sentence in acc ordance with the agreement s and signed certificate s stating in each cases that this “is a plea

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

. R. A PP

. P. 25.2(a)(2). The clerk’s

record s , which each include the trial court’s rule 25.2(a)(2) certification s and written plea bargain agreement s , ha ve been filed. See T EX

. R. A PP

. P. 25.2(d). We noted that t his court 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

.

The clerk’s record s establish the punishment assessed by the court does not exceed the punishment recommended by the prosecutor and agreed to by the defendant. Ordinarily, “[i]n a plea bargain case .

. . a defendant may appeal only: (A) those matters that were raised by written motion filed and ruled on before trial, or (B) after getting the trial court’s permis sion to appeal.”

T EX

. R. A PP

. P. 25.2(a)(2). However, when a defendant waives this limited right to appeal, the defendant may appeal only if the trial court later gives its express permission. See Willis v. State

, 121 S.W.3d 400, 403 (Tex. Crim. App. 20 03); Monreal v. State , 99 S.W.3d 615, 622 (Tex. Crim. App. 2003). The clerk’s record s do not indicate the trial court gave appellant permission to appeal in either case. The trial court’s certification s therefore appear to accurately reflect that

this is a plea bargain case, appellant does not have a right to appeal, and appellant waived any limited right to appeal. See Dears v. State , 154 S.W.3d 610 (Tex. Crim. App. 2005) (holding that court of appeals should review clerk’s record to determine whether t rial court’s certification is accurate).Accordingly

, we advised appellant that th ese appeal s w ould be dismissed pursuant to rule 25.2(d) of the Texas Rules of Appellate Procedure unless written consent s to appeal an d

amended certification s showing that appellant has the right to appeal in each case were made part of the appellate record s

. See T EX

. R. A PP

. P. 25.2(d); 37.1; Daniels v. State , 110 S.W.3d 174 (Tex. App.

— San Antonio 2003, order), disp. on merits , No. 04

- 03

- 00176

- CR, 2003 WL 21508347 (July 2, 2003, pet. ref’d) (not designated for publication).

In his response to our order, appellant advises that his counsel has filed a Request for Permission to Appeal and requested the trial court file amended certifications. Appellant’s

counsel advises tha t he has requested th at his motions, the permission to appeal, and amended certifications be included in a supplemental clerk’s record and filed in this court. As noted above, we have not received a supplemental clerk’s record nor have we been advised by the trial court or counsel that the trial court intends to grant permission to appeal or amend the certifications. Accordingly, with regard to the permission to appeal and any amended certifications, we ORDER appellant to file in this court on or before July 10, 2014 a status report showing what actions, if any, the trial court has taken with regard to appellant’s requests, as well as what additional actions appellant’s counsel has taken in an effort to determine if the

trial court in tends to grant the request or deny it.

A ll appellate deadlines remain suspended until further order of the court. We further

order the clerk of this court to serve copies of this order on all counsel, the district clerk, the court reporter, and the tri al court.

_________________________________ Marialyn Barnard, Justice

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

court on this 30th day of June, 2014

.

___________________________________ Keith E. Hottle

Clerk of Court