Korwin Jeanal Wilburn v. State

• Court: Court of Appeals of Texas
• Decided: April 30, 2019
• Docket: 05-19-00390-CR
• Status: Published

Opinion

DISMISS and Opinion Filed April 30, 2019

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00390-CR

KORWIN JEANAL WILBURN, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 195th Judicial District Court Dallas County, Texas Trial Court Cause No. F16-33130-N

MEMORANDUM OPINION Before Justices Schenck, Osborne, and Reichek Opinion by Justice Reichek Korwin Jeanal Wilburn appeals the trial court’s order deferring adjudication for assault

family violence, with a deadly weapon. Appellant entered into a plea agreement with the State,

which included waiving his right to appeal. The trial court followed the plea agreement and

deferred adjudication of guilt, placing appellant on community supervision for nine months. The

trial court prepared and signed a certification of the 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 be placed on deferred adjudication

for nine months. He also waived his right to appeal. On January 30, 2019, the trial court followed

the plea bargain agreement and placed appellant on deferred adjudication for nine months. 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.

/Amanda L. Reichek/ AMANDA L. REICHEK Do Not Publish JUSTICE TEX. R. APP. P. 47.2(b) 190390F.U05

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

KORWIN JEANAL WILBURN, Appellant On Appeal from the 195th Judicial District Court, Dallas County, Texas No. 05-19-00390-CR V. Trial Court Cause No. F16-33130-N. 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 April 30, 2019

–3–