Mahsa Parviz-Khyavi v. the State of Texas ( 2021 )

DISMISS and Opinion Filed June 17, 2021
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00077-CR
No. 05-21-00078-CR
No. 05-21-00079-CR
No. 05-21-00080-CR
No. 05-21-00081-CR
No. 05-21-00082-CR
MAHSA PARVIZ-KHYAVI, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause Nos. 219-83499-2017, 219-81286-2018, 219-81679-2018,
219-82552-2019, 219-85015-2019 & 219-82928-2020
MEMORANDUM OPINION
Before Justices Molberg, Goldstein, and Smith
Opinion by Justice Smith
On February 4, 2021, Mahsa Parviz-Khyavi filed pro se notices of appeal in
the above cases. In the notices, she states she is appealing the “final judgment signed
by [the trial court] on JANUARY 5, 2021.”
After the clerk’s records were filed, we notified appellant and the State that
we had questions regarding our jurisdiction over these appeals. We directed the
parties to file jurisdictional letter briefs on the issue.1 To date, neither party has
responded. For the reasons that follow, we dismiss these appeals.
An appellate court has jurisdiction to determine an appeal only if the appeal
is authorized by law. Abbott v. State, 271 S.W.3d 694, 696–97 (Tex. Crim. App.
2008). When the appellate court’s jurisdiction is not legally invoked, the court’s
power to act is as absent as if it did not exist. Olivo v. State, 918 S.W.2d 519, 523
(Tex. Crim. App. 1996).
A defendant in a criminal case has the right of appeal as set out in the code of
criminal procedure and the rules of appellate procedure. See TEX. CODE CRIM. PROC.
ANN. art. 44.02; TEX. R. APP. P. 25.2(a). Rule 25.2 provides that in “a plea-bargain
case—that is, a case in which a defendant’s plea was guilty . . . and the punishment
did not exceed the punishment recommended by the prosecutor and agreed to by the
defendant,” a defendant may appeal only “those matters that were raised by written
motion filed and ruled on before trial,” or “after getting the trial court’s permission
to appeal.” TEX. R. APP. P. 25.2(a)(2). When an appellant waives her right to appeal
as part of her plea bargain agreement with the State, a subsequent notice of appeal
filed by her fails to “initiate the appellate process,” thereby depriving this Court of
jurisdiction over the appeal. Lundgren v. State, 434 S.W.3d 594, 599, 600 (Tex.
Crim. App. 2014).
1
Although Parviz-Khyavi filed a pro se notice of appeal, the record reflected she was represented by
counsel. We sent the jurisdictional letter to counsel of record.
–2–
Here, appellant agreed to plead guilty to attempt to commit kidnapping (219-
85015-2019) and tampering with a governmental record (219-82928-2019) in
exchange for the State’s recommendation that she be sentenced to 550 days in state
jail to be served concurrently. In each case, she waived her right to appeal in a written
plea agreement which she signed, as did her trial counsel, the district attorney, and
the trial court. On January 5, 2021, following the plea bargain agreements, the trial
court found appellant guilty and assessed punishment at 550 days in state jail in each
case to be served concurrently. The clerk’s records reflect appellant’s jail time credit
of 558 days and contains the certification that appellant waived her right to appeal
in each case. See TEX. R. APP. P. 25.2. Because the records support the trial court’s
certifications, we conclude appellant waived her right to appeal in appellate cause
numbers 05-21-00081-CR and 05-21-00082-CR. We will dismiss those appeals.
In trial court cause numbers 219-83499-2017, 219-81286-2018, 219-81679-
2018, and 219-82552-2019, the records contain no final judgment or appealable
order dated January 5, 2021. Appellate courts may consider criminal appeals only
after final conviction or the entry of a narrow set of appealable interlocutory orders.
TEX. R. APP. P. 26.2(a)(1); Wright v. State, 969 S.W.2d 588, 589 (Tex. App.—Dallas
1998, no pet.). Because these appeals do not have a final judgment or other
appealable order, we conclude we lack jurisdiction over appellate cause numbers 05-
21-00077-CR, 05-21-00078-CR, 05-21-00079-CR, and 05-21-00080-CR. See
Apolinar v. State, 820 S.W.2d 792, 794 (Tex. Crim. App. 1991).
–3–
We dismiss these appeals for want of jurisdiction.
/Craig Smith/
CRAIG SMITH
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
210077F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MAHSA PARVIZ-KHYAVI, On Appeal from the 219th Judicial
Appellant District Court, Collin County, Texas
Trial Court Cause No. 219-83499-
No. 05-21-00077-CR V. 2017.
Opinion delivered by Justice Smith.
THE STATE OF TEXAS, Appellee Justices Molberg and Goldstein
participating.
Based on the Court’s opinion of this date, we DISMISS this appeal.
Judgment entered June 17, 2021
–5–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MAHSA PARVIZ-KHYAVI, On Appeal from the 219th Judicial
Appellant District Court, Collin County, Texas
Trial Court Cause No. 219-81286-
No. 05-21-00078-CR V. 2018.
Opinion delivered by Justice Smith.
THE STATE OF TEXAS, Appellee Justices Molberg and Goldstein
participating.
Based on the Court’s opinion of this date, we DISMISS this appeal.
Judgment entered June 17, 2021.
–6–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MAHSA PARVIZ-KHYAVI, On Appeal from the 219th Judicial
Appellant District Court, Collin County, Texas
Trial Court Cause No. 219-81679-
No. 05-21-00079-CR V. 2018.
Opinion delivered by Justice Smith.
THE STATE OF TEXAS, Appellee Justices Molberg and Goldstein
participating.
Based on the Court’s opinion of this date, we DISMISS this appeal.
Judgment entered June 17, 2021
–7–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MAHSA PARVIZ-KHYAVI, On Appeal from the 219th Judicial
Appellant District Court, Collin County, Texas
Trial Court Cause No. 219-82552-
No. 05-21-00080-CR V. 2019.
Opinion delivered by Justice Smith.
THE STATE OF TEXAS, Appellee Justices Molberg and Goldstein
participating.
Based on the Court’s opinion of this date, we DISMISS this appeal.
Judgment entered June 17, 2021
–8–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MAHSA PARVIZ-KHYAVI, On Appeal from the 219th Judicial
Appellant District Court, Collin County, Texas
Trial Court Cause No. 219-85015-
No. 05-21-00081-CR V. 2019.
Opinion delivered by Justice Smith.
THE STATE OF TEXAS, Appellee Justices Molberg and Goldstein
participating.
Based on the Court’s opinion of this date, we DISMISS this appeal.
Judgment entered June 17, 2021
–9–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MAHSA PARVIZ-KHYAVI, On Appeal from the 219th Judicial
Appellant District Court, Collin County, Texas
Trial Court Cause No. 219-82928-
No. 05-21-00082-CR V. 2020.
Opinion delivered by Justice Smith.
THE STATE OF TEXAS, Appellee Justices Molberg and Goldstein
participating.
Based on the Court’s opinion of this date, we DISMISS this appeal.
Judgment entered June 17, 2021
–10–