Mahsa Parviz-Khyavi v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 17, 2021
• Docket: 05-21-00080-CR
• Status: Published

Opinion

DISMISS and Opinion Filed June 17, 2021

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00077-CR No. 05-21-00078-CR No. 05-21-00079-CR No. 05-21-00080-CR No. 05-21-00081-CR No. 05-21-00082-CR MAHSA PARVIZ-KHYAVI, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 219th Judicial District Court Collin County, Texas Trial Court Cause Nos. 219-83499-2017, 219-81286-2018, 219-81679-2018, 219-82552-2019, 219-85015-2019 & 219-82928-2020

MEMORANDUM OPINION Before Justices Molberg, Goldstein, and Smith Opinion by Justice Smith On February 4, 2021, Mahsa Parviz-Khyavi filed pro se notices of appeal in

the above cases. In the notices, she states she is appealing the “final judgment signed

by [the trial court] on JANUARY 5, 2021.”

After the clerk’s records were filed, we notified appellant and the State that

we had questions regarding our jurisdiction over these appeals. We directed the parties to file jurisdictional letter briefs on the issue.1 To date, neither party has

responded. For the reasons that follow, we dismiss these appeals.

An appellate court has jurisdiction to determine an appeal only if the appeal

is authorized by law. Abbott v. State, 271 S.W.3d 694, 696–97 (Tex. Crim. App.

2008). When the appellate court’s jurisdiction is not legally invoked, the court’s

power to act is as absent as if it did not exist. Olivo v. State, 918 S.W.2d 519, 523

(Tex. Crim. App. 1996).

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 . . . 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 her right to appeal

as part of her plea bargain agreement with the State, a subsequent notice of appeal

filed by her 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).

1 Although Parviz-Khyavi filed a pro se notice of appeal, the record reflected she was represented by counsel. We sent the jurisdictional letter to counsel of record. –2– Here, appellant agreed to plead guilty to attempt to commit kidnapping (219-

85015-2019) and tampering with a governmental record (219-82928-2019) in

exchange for the State’s recommendation that she be sentenced to 550 days in state

jail to be served concurrently. In each case, she waived her right to appeal in a written

plea agreement which she signed, as did her trial counsel, the district attorney, and

the trial court. On January 5, 2021, following the plea bargain agreements, the trial

court found appellant guilty and assessed punishment at 550 days in state jail in each

case to be served concurrently. The clerk’s records reflect appellant’s jail time credit

of 558 days and contains the certification that appellant waived her right to appeal

in each case. See TEX. R. APP. P. 25.2. Because the records support the trial court’s

certifications, we conclude appellant waived her right to appeal in appellate cause

numbers 05-21-00081-CR and 05-21-00082-CR. We will dismiss those appeals.

In trial court cause numbers 219-83499-2017, 219-81286-2018, 219-81679-

2018, and 219-82552-2019, the records contain no final judgment or appealable

order dated January 5, 2021. Appellate courts may consider criminal appeals only

after final conviction or the entry of a narrow set of appealable interlocutory orders.

TEX. R. APP. P. 26.2(a)(1); Wright v. State, 969 S.W.2d 588, 589 (Tex. App.—Dallas

1998, no pet.). Because these appeals do not have a final judgment or other

appealable order, we conclude we lack jurisdiction over appellate cause numbers 05-

21-00077-CR, 05-21-00078-CR, 05-21-00079-CR, and 05-21-00080-CR. See

Apolinar v. State, 820 S.W.2d 792, 794 (Tex. Crim. App. 1991).

–3– We dismiss these appeals for want of jurisdiction.

/Craig Smith/ CRAIG SMITH JUSTICE

Do Not Publish TEX. R. APP. P. 47.2(b) 210077F.U05

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

MAHSA PARVIZ-KHYAVI, On Appeal from the 219th Judicial Appellant District Court, Collin County, Texas Trial Court Cause No. 219-83499- No. 05-21-00077-CR V. 2017. Opinion delivered by Justice Smith. THE STATE OF TEXAS, Appellee Justices Molberg and Goldstein participating.

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

Judgment entered June 17, 2021

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

MAHSA PARVIZ-KHYAVI, On Appeal from the 219th Judicial Appellant District Court, Collin County, Texas Trial Court Cause No. 219-81286- No. 05-21-00078-CR V. 2018. Opinion delivered by Justice Smith. THE STATE OF TEXAS, Appellee Justices Molberg and Goldstein participating.

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

Judgment entered June 17, 2021.

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

MAHSA PARVIZ-KHYAVI, On Appeal from the 219th Judicial Appellant District Court, Collin County, Texas Trial Court Cause No. 219-81679- No. 05-21-00079-CR V. 2018. Opinion delivered by Justice Smith. THE STATE OF TEXAS, Appellee Justices Molberg and Goldstein participating.

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

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

MAHSA PARVIZ-KHYAVI, On Appeal from the 219th Judicial Appellant District Court, Collin County, Texas Trial Court Cause No. 219-82552- No. 05-21-00080-CR V. 2019. Opinion delivered by Justice Smith. THE STATE OF TEXAS, Appellee Justices Molberg and Goldstein participating.

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

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

MAHSA PARVIZ-KHYAVI, On Appeal from the 219th Judicial Appellant District Court, Collin County, Texas Trial Court Cause No. 219-85015- No. 05-21-00081-CR V. 2019. Opinion delivered by Justice Smith. THE STATE OF TEXAS, Appellee Justices Molberg and Goldstein participating.

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

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

MAHSA PARVIZ-KHYAVI, On Appeal from the 219th Judicial Appellant District Court, Collin County, Texas Trial Court Cause No. 219-82928- No. 05-21-00082-CR V. 2020. Opinion delivered by Justice Smith. THE STATE OF TEXAS, Appellee Justices Molberg and Goldstein participating.

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

–10–