Johnny Matthew Matthies v. the State of Texas

NO. 12-24-00260-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JOHNNY MATTHEW MATTHIES, § APPEAL FROM THE 7TH
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS

MEMORANDUM OPINION
PER CURIAM

Johnny Matthew Matthies, acting pro se, filed a notice of appeal from a conviction for
evading arrest or detention with a vehicle in which sentence was imposed on January 24, 2024. 1
In a criminal case, the appellant perfects an appeal by timely filing a sufficient notice of appeal.
TEX R. APP. P. 25.2(b). The notice of appeal must be filed (1) 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, or (2) within ninety days after the day sentence is imposed or suspended in
open court if the defendant timely files a motion for new trial. TEX R. APP. P. 26.2(a). The
appellate court may extend the time for filing a notice of appeal if, within fifteen days after the
deadline for filing the notice, the party files in the trial court the notice of appeal and files in the
appellate court a motion complying with Rule 10.5(b). TEX R. APP. P. 26.3. Appellant filed his

1
We also note that Appellant and his counsel signed a written certification of Appellant’s right to appeal,
which states that this is a plea bargain case and Appellant has no right to appeal. When the defendant is the
appellant, the record must include the trial court’s certification of the defendant’s right of appeal. TEX. R. APP.
P. 25.2(d). This Court must dismiss an appeal “if a certification that shows the defendant has the right of appeal has
not been made part of the record.” Id.
notice of appeal on August 16, 2024, long after expiration of the time for filing a timely notice of
appeal or a timely motion for extension. 2
On August 20, the Clerk of this Court notified Appellant that the information received
failed to show the jurisdiction of the Court, i.e., there was no notice of appeal filed within the
time allowed by the rules of appellate procedure and no timely motion for an extension of time to
file the notice of appeal. See TEX R. APP. P. 26.2(a), 26.3. We informed Appellant that the
appeal would be dismissed unless the information was amended on or before September 2 to
show this Court’s jurisdiction. Appellant did not file an amended notice of appeal or other
response to this Court’s notice.
“[A]ppeals by either the State or the defendant in a criminal case are permitted only when
they are specifically authorized by statute.” State ex rel. Lykos v. Fine, 330 S.W.3d 904, 915
(Tex. Crim. App. 2011). This Court is not authorized to extend the time for perfecting an appeal
except as provided by the Texas Rules of Appellate Procedure. 3 See TEX. R. APP. P. 26.2, 26.3;
see also Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998); Olivo v. State, 918
S.W.2d 519, 522 (Tex. Crim. App. 1996). Because Appellant’s notice of appeal was not timely
filed, we dismiss Appellant’s appeal for want of jurisdiction. See Olivo, 918 S.W.2d at 522; see
also TEX. R. APP. P. 43.2(f).

Opinion delivered September 18, 2024.
Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals,
sitting by assignment.

(DO NOT PUBLISH)

2
The case information sheet from the Smith County District Clerk’s Office reflects that Appellant did not
file a motion for new trial until August 16, 2024.
3
Only the court of criminal appeals has jurisdiction to grant an out-of-time appeal. See Ater v. Eighth
Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991); see also Kossie v. State, No. 01-16-00738-CR,
2017 WL 631842, at *1-2 (Tex. App.—Houston [1st Dist.] Feb. 16, 2017, no pet. h.) (mem. op., not designated for
publication) (dismissing for lack of jurisdiction because appellant could not pursue out of time appeal without
permission from court of criminal appeals); see TEX. CODE CRIM. PROC. ANN. art 11.07 § 3(a) (West 2005).

2
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

SEPTEMBER 18, 2024

NO. 12-24-00260-CR

JOHNNY MATTHEW MATTHIES,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 7th District Court
of Smith County, Texas (Tr.Ct.No. 007-1997-23)

THIS CAUSE came on to be heard on the appellate record, and the same
being considered, it is the opinion of this Court that it is without jurisdiction of the appeal, and
that the appeal should be dismissed.
It is therefore ORDERED, ADJUDGED and DECREED by this Court that
this appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision
be certified to the court below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals,
sitting by assignment.