Joshua Lewis Neal v. State

Opinion

DISMISS and Opinion Filed August 26, 2019

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00822-CR JOSHUA LEWIS NEAL, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 6 Dallas County, Texas Trial Court Cause No. F19-00213-X

MEMORANDUM OPINION Before Justices Schenck, Osborne, and Reichek Opinion by Justice Reichek Joshua Lewis Neal appeals his conviction for assault family violence. Appellant pleaded

guilty under a plea bargain agreement with the State and waived his right to appeal in exchange

for a reduced charge and the dismissal of an enhancement paragraph. After finding appellant

guilty, the trial court assessed punishment at 180 days in county jail. Appellant filed his notice of

appeal on July 3, 2019.

After the clerk’s record was filed, we notified the parties that we had concerns regarding

our jurisdiction in this appeal. Specifically, the notice of appeal appeared to be untimely filed.

We asked the parties to file jurisdictional letter briefs; appellant responded, stating that the Court

did not have jurisdiction because appellant waived his right to appeal in conjunction with his plea

bargain agreement with the State. The State concurred. A timely filed notice of appeal is required to invoke this Court’s jurisdiction. Castillo v.

State, 369 S.W.3d 196, 198 (Tex. Crim. App. 2012). In the absence of a timely filed notice of

appeal, we have no option other than to dismiss the appeal. Id. A defendant perfects an appeal by

filing with the trial court clerk, within thirty days after the date sentence was imposed, or within

ninety days after sentencing if the defendant timely filed a motion for new trial, a written notice of

appeal showing his desire to appeal. See TEX. R. APP. P. 25.2(b), (c), 26.2(a).

The trial court entered judgment on April 30, 2019; absent a timely filed motion for new

trial, the notice of appeal was due on May 30, 2019. See TEX. R. APP. P. 26.2(a). The clerk’s

record shows the notice of appeal was filed on July 3, 2019. No motion for new trial was filed.

Thus, the notice of appeal is untimely.

We further note that the clerk’s record shows appellant entered into a plea bargain with the

State in which he agreed to waive his right to appeal in exchange for the State dismissing an

enhancement paragraph and reducing the charge. The trial court’s certification of appellant’s right

to appeal states this is a plea bargain case and appellant waived his right to appeal. 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).

Because we lack jurisdiction, we dismiss this appeal.

/Amanda L. Reichek/ AMANDA L. REICHEK Do Not Publish JUSTICE TEX. R. APP. P. 47.2(b) 190822F.U05

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

JOSHUA LEWIS NEAL, Appellant On Appeal from the Criminal District Court No. 6, Dallas County, Texas No. 05-19-00822-CR V. Trial Court Cause No. F19-00213-X. Opinion delivered by Justice Reichek, THE STATE OF TEXAS, Appellee Justices Schenck and Osborne participating.

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

Judgment entered August 26, 2019

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