Roel Cerda v. State ( 2004 )

  NUMBER 13-03-199-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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ROEL CERDA,                                                                  Appellant,

v.

THE STATE OF TEXAS,                                                      Appellee.

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On appeal from the 275th District Court

of Hidalgo County, Texas.

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MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Garza

Opinion Per Curiam

         Appellant, Roel Cerda, appeals from the denial of his application for suspension of execution of sentence. We dismiss.

         Pursuant to a plea bargain, appellant pleaded guilty to the second degree felony offense of intoxication manslaughter. The trial court entered judgment on August 23, 2002, in accordance with the plea bargain, sentencing Cerda to ten years imprisonment in the Institutional Division of the Texas Department of Criminal Justice. On August 27, 2003, appellant applied for suspension of execution of sentence and requested probation under article 42.12, section 6 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 42.12, § 6 (Vernon Supp. 2003). On February 6, 2003, the trial court denied appellant’s application and ordered that “further execution of Defendant’s sentence not be suspended and that Defendant continue to serve out his sentence.”

         On February 24, 2003, appellant’s trial counsel filed a request for appointment of appellate counsel, and on February 26, 2003, appellant’s trial counsel filed a notice of appeal regarding the court’s February 6, 2003 order. The trial court’s certification of appellant’s right to appeal shows that the trial court granted permission to appeal. See Tex. R. App. P. 25.2.

         There is no constitutional right to appellate review of criminal convictions. Perez v. State, 938 S.W.2d 761, 762 (Tex. App.–Austin 1997, pet. ref’d). The right to appeal is conferred by the Legislature, and a party may appeal only that which the Legislature has authorized. Id. The Legislature has not provided for appeal from an order denying suspension of further execution of sentence and placement of the defendant on community supervision pursuant to article 42.12, section 6. Houlihan v. State, 579 S.W.2d 213, 216 (Tex. Crim. App. 1979); see Perez, 938 S.W.2d at 762. Therefore, we do not have jurisdiction over an appeal from the trial court’s order denying suspension of further execution of sentence. See Houlihan, 579 S.W.2d at 216.

         In a criminal case, the notice of appeal must be filed within thirty days after the day sentence is imposed or suspended in open court or after the day the trial court enters an appealable order, unless a timely motion for new trial is filed. Tex. R. App. P. 26.2(a). A notice of appeal which complies with the requirements of rule 26 is essential to vest the court of appeals with jurisdiction. See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998). If an appeal is not timely perfected, the court of appeals does not obtain jurisdiction to consider the merits of the appeal. State v. Riewe, 13 S.W.3d 408, 411 (Tex. Crim. App. 2000). In the instant case, the record does not indicate that appellant filed a motion for new trial, and the notice of appeal was filed more than six months after the date of judgment. Under such circumstances, this Court can take no action other than to dismiss the appeal. See id.

         Accordingly, this appeal is dismissed for want of jurisdiction.

                                                               PER CURIAM

Do not publish. Tex. R. App. P. 47.2(b).

Opinion delivered and filed this

the 24^th day of June, 2004.