Johnny Lee Childress, Jr. v. The State of Texas Appeal from 268th District Court of Fort Bend County (memorandum opinion per curiam)

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Opinion issued October 18, 2016 In The Court of Appeals For The First District of Texas ———————————— NO. 01-16-00416-CR ——————————— JOHNNY LEE CHILDRESS, JR., Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 268th District Court Fort Bend County, Texas Trial Court Cause No. 15-DCR-070013A MEMORANDUM OPINION Appellant, Johnny Lee Childress, Jr., pleaded guilty to the second-degree felony offense of burglary of a habitation with intent to commit a theft under the original trial court cause number 15-DCR-070013, with the agreed punishment recommendation that he receive twelve years’ confinement.1 On April 25, 2016, the trial court assessed appellant’s punishment at twelve years’ confinement under trial court cause number 15-DCR-070013, under the terms of his plea bargain with the State. This sentence is within the applicable range.2 The trial court certified that this is a plea-bargain case, that appellant has no right of appeal, and that he waived his right of appeal. Appellant did not appeal from this judgment. Instead, appellant timely filed a pro se notice of appeal from the related trial court cause number 15-DCR-070013A, under which there is no judgment of conviction. The trial court appointed Michael C. Diaz as appellate counsel for appellant under both trial court cause numbers 15-DCR-070013 and 15-DCR070013A. Appellant’s counsel filed a motion to withdraw with an amended Anders brief under 15-DCR-070013A stating that the record presents no nonfrivolous issues or reversible error and that, therefore, this appeal is without merit and is frivolous. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). Appellant has filed no substantive pro se response to his counsel’s Anders brief.3 We dismiss this appeal for want of jurisdiction. 1 See TEX. PENAL CODE ANN. § 30.02(a)(1), (c)(2) (West Supp. 2016). 2 See TEX. PENAL CODE ANN. § 12.33(a) (West Supp. 2016). 3 On September 27, 2016, this Court denied appellant’s pro se letter-motion to dismiss this appeal without prejudice to refiling by appellant’s counsel because it 2 There is no constitutional right to appellate review of criminal convictions. See Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992). The right to appeal in criminal cases is conferred by the legislature, and a party may appeal only from judgments of conviction or orders authorized as appealable. See TEX. CRIM. PROC. CODE ANN. art. 44.02 (West Supp. 2016); TEX. R. APP. P. 25.2(a)(2); see also Ragston v. State, 424 S.W.3d 49, 52 (Tex. Crim. App. 2014). Here, the clerk’s record for the underlying trial court cause number 15-DCR070013A, filed in this Court on June 6, 2016, reflects that the State had re-indicted appellant on December 21, 2015, for the same second-degree felony offense of burglary of a habitation with intent to commit a theft as under the original trial court cause number 15-DCR-070013. The only apparent difference between appellant’s original and subsequent indictments was that the State added two enhancement paragraphs under trial court cause number 15-DCR-070013A. Then, on April 25, 2016, the trial court signed an order granting the State’s motion to dismiss the indictment in trial court cause number 15-DCR-070013A because appellant “was convicted in another case,” which lists the original trial court cause number 15-DCR-070013.4 Because there is no judgment of conviction or did not comply with Rule 42.2. See TEX. R. APP. P. 42.2(a). To date, appellant’s counsel has not filed a compliant motion to dismiss with this Court. 4 Although the State’s motion to dismiss under 15-DCR-070013A lists the other trial court cause number as “13 DCR 070013,” this appears to be a typographical 3 appealable order in 15-DCR-070013A, the only trial court cause number on this appeal,5 we lack jurisdiction over this appeal. See State v. Sanavongxay, 407 S.W.3d 252, 259 (Tex. Crim. App. 2012) (court of appeals lacks jurisdiction absent written, appealable order); see also Petty v. State, 800 S.W.2d 582, 583 (Tex. App.—Tyler 1990, no writ) (defendant could not appeal trial court dismissal of indictment—defendant not aggrieved by order). Conclusion Accordingly, we dismiss this appeal for want of jurisdiction. See TEX. R. APP. P. 25.2(d), 43.2(f). We dismiss all pending motions as moot. PER CURIAM Panel consists of Chief Justice Radack and Justices Higley and Huddle. Do not publish. TEX. R. APP. P. 47.2(b). error because the clerk’s record for the original trial court cause number 15-DCR070013 was filed in this Court on June 6, 2016, with the judgment signed on April 25, 2016. 5 Moreover, even if appellant had timely appealed from the original trial court cause number 15-DCR-070013, that appeal would have to be dismissed because the trial court’s certification, included in the clerk’s record, states that the original case was a plea-bargained case and that appellant has no right of appeal. See TEX. R. APP. P. 25.2(a)(2), (d). The clerk’s record for 15-DCR-070013 supports the trial court’s certification. See Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005). 4

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