Rodney Lamar Fobbs v. The State of Texas--Appeal from 6th District Court of Lamar County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-03-00191-CR
______________________________
RODNEY LAMAR FOBBS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Sixth Judicial District Court
Lamar County, Texas
Trial Court No. 19508
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION

Rodney Lamar Fobbs pled guilty to the charge of possession of a controlled substance in a drug-free zone with intent to deliver and was sentenced to ten years' confinement. Fobbs now attempts to appeal his conviction. Because this case involves a negotiated plea agreement and because Fobbs does not possess the limited right to appeal available to one who appeals a plea of guilty, we lack jurisdiction over this appeal.

Effective January 1, 2003, the Texas Rules of Appellate Procedure were amended. Appellant's notice of appeal invoking appellate jurisdiction was filed after the effective date of the amended rules. The amended rules therefore apply to this appeal. Rule 25.2(a) was amended to read, in pertinent part:

(2) . . . . A defendant in a criminal case has the right of appeal under Code of Criminal Procedure article 44.02 and these rules. The trial court shall enter a certification of the defendant's right of appeal in every case in which it enters a judgment of guilt or other appealable order. In a plea bargain case-that is, a case in which a defendant's plea is guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant-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 permission to appeal.

Tex. R. App. P. 25.2(a). The trial court filed a certification of Fobbs'right of appeal in accordance with Rule 25.2(a)(2). It states that the case "is a plea-bargain case, and the defendant has NO right of appeal."

We have jurisdiction to determine whether we have jurisdiction. Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996). Fobbs pled guilty, and when adjudged guilty of that crime, he entered into a negotiated plea agreement as to punishment that the trial court did not exceed at sentencing. Under amended Rule 25.2(a)(2), Fobbs was entitled to 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." The trial court certified that neither of these circumstances apply by stating that there is no right of appeal. See Comb v. State, 101 S.W.3d 724, 726 (Tex. App.-Houston [1st Dist.] 2003, no pet.).

Additionally, Fobbs failed to timely perfect his appeal by failing to timely file a notice of appeal. See Tex. R. App. P. 26.2(a). Since Fobbs filed no motion for new trial, he had thirty days from the date on which sentence was imposed to file his notice of appeal. See Tex. R. App. P. 26.2(a)(1). Sentence was imposed on April 23, 2003, and Fobbs filed a notice of appeal on August 26, 2003, well beyond the time period allowed.

For these reasons, we are without jurisdiction and, accordingly, dismiss the appeal.

 

Jack Carter

Justice

 

Date Submitted: September 18, 2003

Date Decided: September 19, 2003

 

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