Kenneth Jerome Wymon v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: February 8, 2023
• Docket: 05-22-00912-CR
• Status: Published

Opinion

DISMISS and Opinion Filed February 8, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00912-CR

KENNETH JEROME WYMON, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 195th Judicial District Court Dallas County, Texas Trial Court Cause No. F22-54054-N

MEMORANDUM OPINION Before Justices Reichek, Nowell, and Garcia Opinion by Justice Garcia Kenneth Jerome Wymon appeals his conviction for manufacture or delivery

of less than one gram of methamphetamine. We conclude we lack jurisdiction over

this appeal, and we dismiss the appeal.

Appellant was indicted for possession with intent to deliver of one gram or

more but less than four grams of methamphetamine. See TEX. PENAL CODE ANN. §

481.112(a), (c). Appellant was represented by counsel in the trial court. On August

31, 2022, appellant signed a judicial confession to the offense and a plea agreement.

The plea agreement, which was signed by appellant, his attorney, the prosecutor, and the trial court, provided appellant would plead guilty and receive a sentence of

confinement in the penitentiary for two years. The plea agreement included a waiver

of the right of appeal: “Defendant knowingly and voluntarily waives appeal.” The

plea agreement also included this statement in a section titled, “Defendant’s

Statements and Waivers”: “I understand that I have a right to appeal to the Court of

Appeals. After consulting with my attorney, I do expressly, voluntarily, knowingly,

and intelligently give up and waive my right to any appeal if the Court follows the

terms of the State’s recommendation as to sentencing.” In the hearing before the

trial court, appellant acknowledged signing the papers and stated that he understood

them. The trial court followed the plea agreement and sentenced appellant to two

years’ imprisonment. The trial court’s certification of appellant’s right of appeal

states the court “certif[ied] this criminal case is a plea-bargain case and the defendant

has NO right of appeal.” The certification is signed by the trial court, appellant, and

appellant’s trial counsel.

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 of Appellate Procedure 25.2

provides that in “a plea-bargain case—that is, a case in which a defendant’s plea was

guilty . . . 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,” “after

–2– getting the trial court’s permission to appeal,” or “where the specific appeal is

expressly authorized by statute.” 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 (Tex. Crim. App. 2014).

In this case, appellant and the State entered into a plea agreement in which

appellant agreed to plead guilty to the charge of possession of methamphetamine,

the State and appellant agreed to waive their rights to a jury trial, and both the State

and appellant agreed to appellant receiving a sentence of “confinement in

penitentiary for 2 years.” The documents appellant signed admonished appellant

that he waived his right of appeal. The clerk’s record contains no written motions

filed by appellant that were ruled on before trial. Appellant did not receive the trial

court’s permission to appeal, and there is no specific statutory authorization that

would authorize an appeal in this case. Under these circumstances, we must dismiss

the appeal without further action. See TEX. R. APP. P. 25.2(d); Chavez v. State, 183

S.W.3d 675, 680 (Tex. Crim. App. 2006).

We requested appellant and the State to file letter briefs addressing the

jurisdictional issue. Appellant argues he did not waive his right of appeal and that

his timely notice of appeal established this Court’s jurisdiction, citing and quoting

Garza v. Idaho, 139 S. Ct. 738 (2019). Garza concerned whether an attorney

–3– rendered ineffective assistance of counsel by not filing a notice of appeal when told

to do so by the defendant even though the defendant pleaded guilty pursuant to a

plea bargain that included waiver of some—but not all—rights of appeal. Id. at 744–

46. The Supreme Court concluded that counsel was ineffective for not following the

defendant’s clear requests to file the appeal. Id. at 746 (“Where, as here, a defendant

has expressly requested an appeal, counsel performs deficiently by disregarding the

defendant’s instructions.”). In the case before us, appellant did not lack effective

assistance of counsel due to counsel’s failure to file a notice of appeal because

appellant’s counsel filed a notice of appeal. Also in Garza, the appellant “retained

a right to appeal at least some issues despite the waivers he signed,” which counsel

forfeited by not filing a notice of appeal. Id. at 747. In this case, appellant had no

right of appeal because the appeal was from a plea bargain, the record does not show

there were any pretrial motions ruled on before trial, and the trial court did not grant

appellant permission to appeal. See TEX. R. APP. P. 25.2(a). Garza does not address

appellate jurisdiction, and it does not hold that appellate jurisdiction exists when a

statute and rule provide there is no jurisdiction in an appeal from a judgment that

follows the terms of a plea bargain. We conclude Garza does not demonstrate that

this Court has jurisdiction over appellant’s appeal.

–4– We dismiss appellant’s appeal for want of jurisdiction.

/Dennise Garcia/ DENNISE GARCIA Do Not Publish JUSTICE TEX. R. APP. P. 47.2(b) 220912F.U05

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

KENNETH JEROME WYMON, On Appeal from the 195th Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F22-54054-N. No. 05-22-00912-CR V. Opinion delivered by Justice Garcia. Justices Reichek and Nowell THE STATE OF TEXAS, Appellee participating.

Based on the Court’s opinion of this date, the appeal is DISMISSED for want of jurisdiction.

Judgment entered February 8, 2023

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