Khalil Anderson v. State ( 2018 )

Opinion issued August 30, 2018
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00492-CR
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KHALIL ANDERSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Case No. 1479711
MEMORANDUM OPINION
Appellant, Khalil Anderson, pleaded guilty to the first-degree felony offense
of aggravated robbery—deadly weapon with an agreed punishment recommendation
of fifteen years’ confinement.1 In accordance with his plea bargain with the State,
1
See TEX. PENAL CODE ANN. § 29.03(a)(2), (b) (West 2011).
the trial court adjudicated appellant guilty and assessed his punishment at fifteen
years’ confinement on January 27, 2016.2 Appellant filed a pro se out-of-time
motion for new trial on March 1, 2018, but he claims that because the trial court
denied it by operation of law on May 4, 2018, that rendered his appeal timely filed
on May 9, 2018. We dismiss this appeal for want of jurisdiction.
A criminal defendant’s notice of appeal must be filed within thirty days after
the sentence is imposed, or within ninety days after the sentence is imposed if the
defendant has timely filed a motion for new trial. See TEX. R. APP. P. 26.2(a). The
time for filing a notice of appeal may be extended if, within fifteen days of the
deadline for filing the notice of appeal, an appellant files both a notice of appeal and
a motion for an extension of time to file the notice of appeal. See TEX. R. APP. P.
26.3; Douglas v. State, 987 S.W.2d 605, 606 (Tex. App.—Houston [1st Dist.] 1999,
no pet.) (“The limited, 15-day extended time period applies to both the notice and
the motion for extension; both must be filed within the 15-day time period.”). A
notice of appeal that 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); Olivo v. State, 918 S.W.2d 519, 522–23 (Tex. Crim. App. 1996).
2
See TEX. PENAL CODE ANN. § 12.32(a) (West 2011).
2
If an appeal is not timely perfected, a court of appeals does not obtain jurisdiction to
address the merits of the appeal. See Slaton, 981 S.W.2d at 210.
Here, the trial court signed appellant’s judgment of conviction on January 27,
2016, and imposed the sentence that day. Appellant did not timely file a motion for
new trial, making his notice of appeal due by February 27, 2016. See TEX. R. APP.
P. 4.1(a), 26.2(a)(1). To the extent appellant claims that because the trial court
denied his out-of-time motion for new trial by operation of law on May 4, 2018, that
rendered his appeal timely, his out-of-time motion for new trial was null and void
and the trial court had no jurisdiction to consider it. See Beathard v. State, 767
S.W.2d 423, 433 (Tex. Crim. App. 1989). Appellant’s notice of appeal was not filed
until May 9, 2018, more than two years after his sentence was imposed and, thus,
was filed untimely. See TEX. R. APP. P. 26.3; Douglas, 987 S.W.2d at 606. Thus,
under these circumstances, we can take no action other than to dismiss this appeal
for want of jurisdiction.3 See Slaton, 981 S.W.2d at 210; Olivo, 918 S.W.2d at 526.
Accordingly, we dismiss this appeal for want of jurisdiction. See TEX. R. APP.
P. 43.2(f). We dismiss any pending motions as moot.
3
Moreover, even if appellant had timely appealed, this appeal must be dismissed
because the trial court’s certification stated that this was a plea-bargained case and
that he had no right of appeal. See TEX. R. APP. P. 25.2(a)(2), (d). The clerk’s
record, filed in this Court, supports the trial court’s certification. See Dears v. State,
154 S.W.3d 610, 615 (Tex. Crim. App. 2005).
3
PER CURIAM
Panel consists of Justices Keyes, Bland, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
4