Scott Barrie Melton v. State

• Court: Court of Appeals of Texas
• Decided: September 16, 2015
• Docket: 05-15-01096-CR
• Status: Published

Opinion

Dismissed and Opinion Filed September 16, 2015.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-01096-CR

SCOTT BARRIE MELTON, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 296th Judicial District Court Collin County, Texas Trial Court Cause No. 296-81503-2011

MEMORANDUM OPINION Before Justices Bridges, Francis, and Myers Opinion by Justice Myers Scott Barrie Melton was convicted of possession of marijuana in an amount of five

pounds or less but more than four ounces. Pursuant to a plea bargain, the trial court sentenced

appellant to nine months’ confinement in a state jail facility. Sentence was imposed in open

court on March 19, 2012. Appellant waived his right to appeal in conjunction with the plea

agreement, and the trial court certified that appellant did not have the right to appeal. See TEX.

R. APP. P. 25.2(a), (d); Dears v. State, 154 S.W.3d 610 (Tex. Crim. App. 2005); Blanco v. State,

18 S.W.3d 218, 219–20 (Tex. Crim. App. 2000).1 The Court now has before it appellant’s

September 10, 2015 pro se notice of appeal. We conclude we lack jurisdiction over the appeal.

1 Appellant’s original appeal of the conviction was dismissed for want of jurisdiction. Melton v. State, No. 05-12-00547-CR (Tex. App – Dallas June 5, 2012, no pet.). “Jurisdiction concerns the power of a court to hear and determine a case.” Olivo v. State,

918 S.W.2d 519, 522 (Tex. Crim. App. 1996). The jurisdiction of an appellate court must be

legally invoked, and, if not, the power of the court to act is as absent as if it did not exist. See id.

at 523. “The standard to determine whether an appellate court has jurisdiction to hear and

determine a case ‘is not whether the appeal is precluded by law, but whether the appeal is

authorized by law.’” Blanton v. State, 369 S.W.3d 894, 902 (Tex. Crim. App. 2012) (quoting

Abbott v. State, 271 S.W.3d 694, 696–97 (Tex. Crim. App. 2008)). The right to appeal in a

criminal case is a statutorily created right. See McKinney v. State, 207 S.W.3d 366, 374 (Tex.

Crim. App. 2006); Griffin v. State, 145 S.W.3d 645, 646 (Tex. Crim. App. 2004). See also TEX.

CODE CRIM. P. ANN. art. 44.02 (West 2006) (providing right of appeal for defendant); TEX. R.

APP. P. 25.2(a)(2) (rules for appeal by defendant). Appellate courts may consider appeals by

criminal defendants only after conviction or the entry of an appealable order. See Wright v.

State, 969 S.W.2d 588, 589 (Tex. App.––Dallas 1998, no pet.).

Appellant’s September 10, 2015 notice of appeal is untimely as to the March 19, 2012

sentencing date, see TEX. R. APP. P. 26.2(a), and no further appealable orders have been entered

by the trial court. Therefore, we have no jurisdiction over this appeal.

We dismiss the appeal for want of jurisdiction.

/Lana Myers/ LANA MYERS JUSTICE

Do Not Publish TEX. R. APP. P. 47 151096F.U05

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

SCOTT BARRIE MELTON, Appellant On Appeal from the 296th Judicial District Court, Collin County, Texas No. 05-15-01096-CR V. Trial Court Cause No. 296-81503-2011. Opinion delivered by Justice Myers, Justices THE STATE OF TEXAS, Appellee Bridges and Francis participating.

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

Judgment entered this 16th day of September, 2015.

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