Evan Albert McGinley v. State

• Court: Court of Appeals of Texas
• Decided: April 26, 2019
• Docket: 05-19-00417-CR
• Status: Published

Opinion

Dismissed; Opinion Filed April 26, 2019.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00417-CR

EVAN ALBERT MCGINLEY, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 282nd Judicial District Court Dallas County, Texas Trial Court Cause No. F17-60637-S

MEMORANDUM OPINION Before Justices Bridges, Brown, and Nowell Opinion by Justice Nowell Evan Albert McGinley appeals his conviction for failure to register as a sex offender.

Appellant entered into a plea agreement with the State, which included waiving his right to appeal.

The trial court followed the plea agreement and assessed punishment at ten years in prison,

probated for three years. The trial court prepared and signed a certification of appellant’s right to

appeal, stating this case is a plea bargain case and appellant had no right to appeal. Appellant then

filed his notice of appeal with this Court. For the reason that follows, we dismiss this appeal for

want of jurisdiction.

A defendant in a criminal case has the right of appeal as set out in the code of criminal

procedure and the rules of appellate procedure. See TEX. CODE CRIM. PROC. ANN. art. 44.02); TEX.

R. APP. P. 25.2(a). Rule 25.2 provides that 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

“those matters that were raised by written motion filed and ruled on before trial,” or “after getting

the trial court’s permission to appeal.” TEX. R. APP. P. 25.2(a)(2). When an appellant waives his

right to appeal as part of his plea bargain agreement with the State, a subsequent notice of appeal

filed by him fails to “initiate the appellate process,” thereby depriving this Court of jurisdiction

over the appeal. Lundgren v. State, 434 S.W.3d 594, 599, 600 (Tex. Crim. App. 2014).

Here, appellant entered into a plea agreement with the State, agreeing to plead nolo

contendere in exchange for the State’s recommendation that he receive ten years confinement,

probated for three years. On November 29, 2018, the trial court followed the plea bargain

agreement, found appellant guilty, and assessed punishment at ten years confinement, probated for

three years. The trial court’s certification of appellant’s right to appeal states the case involves a

plea bargain agreement and appellant has no right to appeal. Under these circumstances,

appellant’s notice of appeal is ineffective to initiate the appellate process, and we lack jurisdiction

over this appeal. See id.

We dismiss this appeal for want of jurisdiction.

/Erin A. Nowell/ ERIN A. NOWELL Do Not Publish JUSTICE TEX. R. APP. P. 47.2(b) 190417F.U05

–2– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

EVAN ALBERT MCGINLEY, Appellant On Appeal from the 282nd Judicial District Court, Dallas County, Texas No. 05-19-00417-CR V. Trial Court Cause No. F17-60637-S. Opinion delivered by Justice Nowell, THE STATE OF TEXAS, Appellee Justices Bridges and Brown participating.

Based on the Court’s opinion of this date, we DISMISS this appeal.

Judgment entered this 26th day of April, 2019.

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