James Otis Clary v. State ( 2015 )

ACCEPTED
03-15-00181-CR
4672166
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/27/2015 12:32:29 PM
JEFFREY D. KYLE
CLERK
No. 03-15-00181-CR
In the FILED IN
3rd COURT OF APPEALS
Court of Appeals for the Third District of Texas AUSTIN, TEXAS
at Austin 3/27/2015 12:32:29 PM
___________________________ JEFFREY D. KYLE
Clerk
On Appeal from the 277th Judicial District Court, of
Williamson County, Texas
In Cause No. 85-355-K2
____________________________
JAMES OTIS CLARY
Appellant
v.
THE STATE OF TEXAS,
Appellee
_____________________________
STATE’S MOTION TO DISMISS
_____________________________
TO THE HONORABLE COURT:
COMES NOW Appellee, the State of Texas, by and through the
undersigned assistant district attorney, and files this Motion to Dismiss.
The State contends that this Court should dismiss this appeal because (1) the
Defendant’s waiver of his right to appeal in the trial court divests this court of
jurisdiction, and (2) the Defendant’s notice of appeal is untimely by approximately
40 years.
In support hereof, Appellant would show this Court the following:
I. Appellant has Waived his Right to Appeal
Appellant was convicted and sentenced to life in prison in the above cause
on September 19, 1985, pursuant to a plea bargain. See Exhibit A. As part of his
acceptance of the plea bargain, and the trial court accepting said plea bargain and
pronouncing the agreed upon sentence, Appellant waived his right to appeal. See
Exhibit B. Therefore the trial court cannot certify that Appellant has a right to
appeal and the appeal must be dismissed pursuant to Tex. R. App. P. 25.2(d).
Further, nothing in Appellant’s notice of appeal indicates he received
permission from the trial court to appeal the results of his plea bargain. Hence his
appeal is barred under Tex. R. App. P. 25.2(a)(2) and Tex. Code Crim. Proc. Art.
44.02.
II. Appellant’s Notice of Appeal is Untimely
Tex. R. App. P. 26.2(a) requires notice of appeal within 30 days after the
trial court imposes the sentence or enters the appealable order or within 90 days if
the Appellant files a timely motion for new trial. Appellant filed his notice of
appeal on March 19, 2015, almost 40 years after his sentencing date of September
19, 1985. Therefore, Appellant has not perfected his appeal and this court should
not entertain it. See e.g. Delatorre v. State, 957 S.W.2d 145 (Tex. App.—Austin
1997).
III. Prayer
WHEREFORE PREMISES CONSIDERED, Appellant respectfully requests
that this Court dismiss the instant appeal for want of jurisdiction.
Respectfully submitted,
Jana Duty
District Attorney
Williamson County, Texas
/s/ John C. Prezas
John C. Prezas
Assistant District Attorney
State Bar Number 24041722
405 Martin Luther King #1
Georgetown, Texas 78626
(512) 943-1248
(512) 943-1255 (fax)
jprezas@wilco.org
CERTIFICATE OF SERVICE
I certify that a copy of the State’s Motion to Dismiss has been sent by
regular mail to Applicant, on March 27, 2015, to the following address:
Mr. James O. Clary, Petitioner
TDJC# 406109
379 FM 2972 West— Hodge Unit
Rusk, TX 75785-3666
_/S/ John C. Prezas____________________
John C. Prezas
CERTIFICATE OF COMPLIANCE
I certify that the State’s answer contains 357 words, after applicable
exclusions, in compliance with amended Texas Rule of Appellate Procedure 9.4(3)
_/S/ John C. Prezas____________________
John C. Prezas
EXHIBIT A
(Judgment, Sentence, Plea Bargain Agreement)
EXHIBIT B
(Waiver of Appeal)