Yat Ho Wong v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: November 23, 2022
• Docket: 05-22-01005-CR
• Status: Published

Opinion

Dismissed w.o.j. and Opinion Filed November 23, 2022.

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-01005-CR

YAT HO WONG, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 219th Judicial District Court Collin County, Texas Trial Court Cause No. 219-85349-2021

MEMORANDUM OPINION Before Justices Molberg, Partida-Kipness, and Carlyle Opinion by Justice Partida-Kipness Before the Court is appellant Yat Ho Wong’s October 12, 2022 motion to

dismiss this appeal. We deny appellant’s motion but dismiss the appeal on other

grounds on the Court’s own motion.

On September 23, 2022, appellant filed a pro se notice of appeal in three cases

asserting his intent “to appeal the conviction dated the 15th day of September, 2022.”

Two of the three cases, Cause Nos. 05-22-01005-CR and 05-22-01006-CR, arise

from the 219th Judicial District Court. The third case, Cause No. 05-22-01007-CR,

arises from a misdemeanor case in Collin County Court at Law No. 6. In Cause No. 05-22-01005-CR, the trial court clerk transmitted with the notice

of appeal a September 21, 2022 trial court order dismissing the case and a September

28, 2022 “Withdrawal of Notice of Appeal,” filed by appellant’s counsel. In the

withdrawal document, counsel stated he was appointed to represent appellant after

appellant filed the pro se notice of appeal. Counsel further stated appellant “does not

seek to appeal to the Court of Appeals the Order of Dismissal signed by the court on

September 21, 2022 in this cause and matter.” This Court construed the withdrawal

as a motion to dismiss the appeal and denied the motion because appellant did not

sign it. See TEX. R. APP. P. 42.2(a) (requiring appellant and counsel both sign motion

to dismiss appeal).

Counsel then filed the pending motion to dismiss. In the motion before us,

counsel asks this Court to dismiss the appeal in Cause No. 05-22-01005-CR because

appellant does not seek to appeal the dismissal order signed by the trial court in the

associated trial court cause no. 219-85349-2021. Although appellant signed the

motion to dismiss, he included the words “under duress” beside his signature.

In the absence of evidence shedding light on appellant’s intentions, we cannot

grant a voluntary dismissal where, as here, the appellant signs the motion to dismiss

with a notation that he signed the motion under duress. See TEX. R. APP. P. 42.2(a);

see also Connors v. State, 966 S.W.2d 108, 110 (Tex. App.—Houston [1st Dist.]

1998, pet. ref’d) (explaining apparent purpose of rule 42.2(a) signature requirement

is to protect defendant from having appeal dismissed by counsel without defendant’s

–2– consent and to provide counsel with notice so counsel can advise defendant about

dismissal). We, therefore, deny appellant’s motion to dismiss appeal.

On our own motion, we conclude dismissal is proper on other grounds. A

defendant may appeal only from judgments and appealable orders. TEX. CODE CRIM.

PROC. art. 44.02; TEX. R. APP. P. 25.2(a)(2). An appellate court may exercise

jurisdiction only where such jurisdiction is authorized by law. Abbott v. State, 271

S.W.3d 694, 696–97 (Tex. Crim. App. 2008).

Here, the trial court entered an order dismissing the case. A defendant may

not appeal from a dismissal order. TEX. R. APP. P. 25.2(a)(2); Bohannon v. State, 352

S.W.3d 47, 48 (Tex. App.—Fort Worth 2011, pet. ref’d) (order dismissing charging

instrument is not appealable order for defendant under rule 25.2(a)(2)); Petty v.

State, 800 S.W.2d 582, 583–84 (Tex. App.—Tyler 1990, no pet.) (per curiam)

(dismissal of indictment is not appealable order). Because there is no appealable

order, we dismiss Cause No. 05-22-01005-CR for want of jurisdiction.

/Robbie Partida-Kipness/ ROBBIE PARTIDA-KIPNESS JUSTICE Do Not Publish TEX. R. APP. P. 47.2(b) 221005F.U05

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

YAT HO WONG, Appellant On Appeal from the 219th Judicial District Court, Collin County, Texas No. 05-22-01005-CR V. Trial Court Cause No. 219-85349- 2021. THE STATE OF TEXAS, Appellee Opinion delivered by Justice Partida- Kipness. Justices Molberg and Carlyle participating.

Based on the Court’s opinion of this date, the appeal is DISMISSED FOR WANT OF JURISDICTION.

Judgment entered November 23, 2022

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