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).

3

__________________________________________

Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Kelly and Smith Dismissed for Want of Jurisdiction Filed: May 1, 2019 Do Not Publish