Ryan Sullivan v. State

• Court: Court of Appeals of Texas
• Decided: April 22, 2020
• Docket: 05-20-00413-CR
• Status: Published

Opinion

Dismiss and Opinion Filed April 22, 2020

In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-00413-CR No. 05-20-00414-CR RYAN SULLIVAN, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 363rd Judicial District Court Dallas County, Texas Trial Court Cause Nos. F19-34385-W & F19-34386-W

MEMORANDUM OPINION Before Justices Schenck, Molberg, and Nowell Opinion by Justice Nowell Ryan Sullivan was charged with fraudulent use or possession of more than

fifty items of identifying information and unauthorized use of a motor vehicle. On

October 8, 2019, appellant pleaded guilty under plea bargain agreements with the

State. The trial court followed the plea agreements, placed appellant on deferred

adjudication for five years in each case, and certified that each was a “plea-bargain

case, and the defendant has NO right of appeal.” On November 4, 2019, appellant

signed a notice of appeal with both case numbers listed; this document was mailed

to the trial court judge in an envelope postmarked November 6, 2019. It was file- stamped by the Dallas County District Clerk on March 2, 2020 and forwarded to this

Court on April 1, 2020.

A defendant perfects an appeal by filing with the trial court clerk, within thirty

days after the date sentence was imposed, a written notice of appeal showing his

desire to appeal. See TEX. R. APP. P. 25.2(b), (c), 26.2(a), (b). Under the prisoner

mailbox rule, if a pro se inmate timely delivers a document to prison authorities for

forwarding to the court clerk, the document is deemed filed when placed with prison

officials for mailing. Campbell v. State, 320 S.W.3d 338, 344 (Tex. Crim. App.

2010). Courts have interpreted court clerk liberally to include “agents of the district

clerk” and the clerk of the correct court of appeals. See Taylor v. State, 424 S.W.3d

39, 45‒46 (Tex. Crim. App. 2014); Moore v. State, 840 S.W.2d 439, 441 (Tex. Crim.

App. 1992). However, mailing a notice of appeal to one’s attorney, the trial court,

or the trial court judge does not meet the requirements of the rule. Turner v. State,

529 S.W.3d 157, 159 (Tex. App.—Texarkana 2017, no pet.) (holding prisoner

mailbox rule did not apply when appellant delivered envelope to prison authorities

for forwarding to trial judge); Bowen v. State, 05-19-01530-CR, 2020 WL 1042646,

at *1 (Tex. App.—Dallas Mar. 3, 2020, no pet. h.) (mem. op., not designated for

publication) (concluding mailbox rule did not apply when notice was mailed to trial

court judge).

In these cases, the trial court placed appellant on deferred adjudication on

October 8, 2019, making any notice of appeal due on November 7, 2019. See TEX. –2– R. APP. P. 26.2(a)(1). Appellant’s notice, post-marked November 6, 2019, was

mailed to “Tracy Holmes,” presiding judge of the 363rd Judicial District Court, then

forwarded to the district clerk who filed it on March 2, 2020. Because appellant’s

notice was not mailed to the court clerk, but rather to the trial court judge, the

prisoner mailbox rule does not apply, and appellant’s notice of appeal is untimely.

In addition, the trial court certified appellant’s cases were plea bargain cases

and that he had no right to appeal. A defendant who enters into a plea bargain

agreement with the State may appeal only matters raised by written motion filed and

ruled on before trial or after getting the trial court’s permission to appeal. Chavez v.

State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006). Nothing in the record shows

appellant filed written pre-trial motions that were ruled on before trial. And the

record is clear that the trial court filed a certification stating the sentences in these

cases were the result of a plea bargain agreement and appellant has no right to appeal.

Under these circumstances, we have no alternative than to dismiss these

appeals. See Castillo v. Sate, 369 S.W.3d 196, 198 (Tex. Crim. App. 2012) (in

absence of timely filed notice of appeal, court must dismiss appeal for want of

jurisdiction.).

/Erin A. Nowell/ ERIN A. NOWELL JUSTICE

Do Not Publish TEX. R. APP. P. 47.2(b) 200413F.U05 –3– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

RYAN SULLIVAN, Appellant On Appeal from the 363rd Judicial District Court, Dallas County, Texas No. 05-20-00413-CR V. Trial Court Cause No. F19-34385-W. Opinion delivered by Justice Nowell. THE STATE OF TEXAS, Appellee Justices Schenck and Molberg participating.

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

Judgment entered this 22nd day of April, 2020.

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

RYAN SULLIVAN, Appellant On Appeal from the 363rd Judicial District Court, Dallas County, Texas No. 05-20-00414-CR V. Trial Court Cause No. F19-34386-W. Opinion delivered by Justice Nowell. THE STATE OF TEXAS, Appellee Justices Schenck and Molberg participating.

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

–5–