Wilfred Warren Sheppard v. State

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-19-00180-CR

Wilfred Warren Sheppard, Appellant

v.

The State of Texas, Appellee

FROM THE 27TH DISTRICT COURT OF BELL COUNTY, NO. 73471, THE HONORABLE JOHN GAUNTT, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant Wilfred Warren Sheppard filed a pro se pretrial notice of appeal of the

trial court’s oral order denying his pretrial motion to dismiss.1 We lack jurisdiction over

Sheppard’s appeal for several reasons.

In criminal cases, this Court has jurisdiction to consider appeals from the entry of

an appealable order. See Tex. R. App. P. 25.2; Tex. Code Crim. Proc. art. 44.02; see also Tex.

R. App. P. 26.2(a)(1). However, there must be a written, signed order from which to

appeal. See State v. Sanavongxay, 407 S.W.3d 252, 259 (Tex. Crim. App. 2012) (noting that “our

precedent requires that an order be in writing” when discussing State’s statutory right to appeal

pretrial suppression order); see also State v. Rosenbaum, 818 S.W.2d 398, 401-02 (Tex. Crim.

App. 1991) (holding that for purposes of appeal, trial court “enters” order when judge signs

order). The record before us contains no written, signed order denying Sheppard’s motion to

1 The trial court’s docket sheet reflects that a Faretta hearing has been held and that Sheppard is representing himself at trial. dismiss; thus, there has been no entry of an appealable order. See, e.g., Dekneef v. State,

No. 03-13-00699-CR, 2013 WL 6801261, at *1 (Tex. App.—Austin Dec. 20, 2013, no pet.)

Even if the trial court had signed an order, we find no authority for Sheppard to

appeal the order. In Texas, appeals in a criminal case are permitted only when they are

specifically authorized by statute. State ex rel. Lykos v. Fine, 330 S.W.3d 904, 915 (Tex. Crim.

App. 2011); see Bayless v. State, 91 S.W.3d 801, 805 (Tex. Crim. App. 2002) (“[A] defendant’s

right of appeal is a statutorily created right.”). The standard for determining 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)); State ex rel. Lykos, 330 S.W.3d at 915. Thus, a court of

appeals does not have jurisdiction to review interlocutory orders unless that jurisdiction has been

expressly granted by law. Ex parte Apolinar, 820 S.W.2d 792, 794 (Tex. Crim. App. 1991); Ex

parte Shumake, 953 S.W.2d 842, 844 (Tex. App.—Austin 1997, no pet.). No such grant exists

for a defendant’s direct appeal of an interlocutory order denying a pretrial motion to dismiss.

See, e.g., Ex parte Wiley, 949 S.W.2d 3, 4 (Tex. App.—Fort Worth 1996, no writ) (dismissing

appeal because “[t]here is no statute providing for interlocutory appeal of denial of

a motion to dismiss”).

Finally, the trial-court certification in the record reflects that Sheppard has no

right of appeal. We are required to dismiss an appeal “if a certification that shows the defendant

has a right of appeal has not been made part of the record.” See Tex. R. App. P. 25.2(d); Dears

v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005).

Accordingly, we dismiss the appeal for want of jurisdiction. See Tex. R. App. P.

25.2(a)(2), (d); id. R. 43.2 (f).

2 __________________________________________ Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Kelly and Smith

Dismissed for Want of Jurisdiction

Filed: May 1, 2019

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