Steven Marlin Schade v. The State of Texas Appeal from 76th District Court of Camp County (memorandum opinion by chief justice iii morriss)
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In The Court of Appeals Sixth Appellate District of Texas at Texarkana No. 06-15-00097-CR STEVEN MARLIN SCHADE, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 76th District Court Camp County, Texas Trial Court No. CF-14-1377 Before Morriss, C.J., Moseley and Burgess, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION Steven Marlin Schade pled guilty to, and was convicted of, the offense of aggravated robbery. Schade’s resulting sentence of twenty years’ incarceration was imposed March 17, 2014, and Schade did not file a motion for new trial. Schade filed his notice of appeal June 2, 2015. The issue before us is whether Schade properly invoked this Court’s jurisdiction by timely perfecting his appeal. Because we find that Schade’s notice of appeal was not timely filed and because he waived his right of appeal, we conclude that we are without jurisdiction to hear the appeal. A timely filed notice of appeal is necessary to invoke this Court’s jurisdiction. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). A criminal defendant’s notice of appeal is timely if filed within thirty days after the date sentence is imposed or suspended or, if the defendant timely files a motion for new trial, within ninety days after the date sentence is imposed. TEX. R. APP. P. 26.2(a); Olivo, 918 S.W.2d at 522. In this case, the deadline for filing a notice of appeal was April 16, 2014. See TEX. R. APP. P. 26.2(a)(2). The notice of appeal in this matter was filed well after that deadline; it is therefore untimely. Even if Schade’s notice of appeal had been timely filed, we nevertheless would not have jurisdiction over this appeal. In a plea agreement in this case, Schade waived any right of appeal he might have had. The Texas Legislature has granted a very limited right of appeal in such cases. In a plea-bargain case—that is, a case in which a defendant’s plea was 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. 2 TEX. R. APP. P. 25.2(a)(2). Further, this Court is required to dismiss an appeal if, as in this case, the trial court’s certification indicates that there is no right of appeal. See TEX. R. APP. P. 25.2(d). Because this was a plea-bargain case in which the assessed punishment did not exceed the agreedon punishment recommendation and the trial court did not give permission for an appeal, Schade did not have a right of appeal from his conviction. See id. By letter dated July 8, 2015, we notified Schade of these potential defects in our jurisdiction and afforded him an opportunity to respond. Schade filed a response in which he claims that the trial court gave him permission to appeal in compliance with Rule 25.2(a)(2)(B) of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 25.2(a)(2)(B). However, the trial court’s certification in this case indicates there is no right of appeal. In light of the foregoing, we dismiss this appeal for want of jurisdiction. Josh R. Morriss, III Chief Justice Date Submitted: Date Decided: August 24, 2015 August 25, 2015 Do Not Publish 3
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