                                                                                                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)
