Kenneth Jerome Wymon v. the State of Texas

DISMISS and Opinion Filed February 8, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00912-CR
KENNETH JEROME WYMON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F22-54054-N
MEMORANDUM OPINION
Before Justices Reichek, Nowell, and Garcia
Opinion by Justice Garcia
Kenneth Jerome Wymon appeals his conviction for manufacture or delivery
of less than one gram of methamphetamine. We conclude we lack jurisdiction over
this appeal, and we dismiss the appeal.
Appellant was indicted for possession with intent to deliver of one gram or
more but less than four grams of methamphetamine. See TEX. PENAL CODE ANN. §
481.112(a), (c). Appellant was represented by counsel in the trial court. On August
31, 2022, appellant signed a judicial confession to the offense and a plea agreement.
The plea agreement, which was signed by appellant, his attorney, the prosecutor,
and the trial court, provided appellant would plead guilty and receive a sentence of
confinement in the penitentiary for two years. The plea agreement included a waiver
of the right of appeal: “Defendant knowingly and voluntarily waives appeal.” The
plea agreement also included this statement in a section titled, “Defendant’s
Statements and Waivers”: “I understand that I have a right to appeal to the Court of
Appeals. After consulting with my attorney, I do expressly, voluntarily, knowingly,
and intelligently give up and waive my right to any appeal if the Court follows the
terms of the State’s recommendation as to sentencing.” In the hearing before the
trial court, appellant acknowledged signing the papers and stated that he understood
them. The trial court followed the plea agreement and sentenced appellant to two
years’ imprisonment. The trial court’s certification of appellant’s right of appeal
states the court “certif[ied] this criminal case is a plea-bargain case and the defendant
has NO right of appeal.” The certification is signed by the trial court, appellant, and
appellant’s trial counsel.
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 of Appellate Procedure 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,” “after
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getting the trial court’s permission to appeal,” or “where the specific appeal is
expressly authorized by statute.” TEX. R. APP. P. 25.2(a)(2). When an appellant
waives his right to appeal as part of his plea bargain agreement with the State, a
subsequent notice of appeal filed by him fails to “initiate the appellate process,”
thereby depriving this Court of jurisdiction over the appeal. Lundgren v. State, 434
S.W.3d 594, 599 (Tex. Crim. App. 2014).
In this case, appellant and the State entered into a plea agreement in which
appellant agreed to plead guilty to the charge of possession of methamphetamine,
the State and appellant agreed to waive their rights to a jury trial, and both the State
and appellant agreed to appellant receiving a sentence of “confinement in
penitentiary for 2 years.” The documents appellant signed admonished appellant
that he waived his right of appeal. The clerk’s record contains no written motions
filed by appellant that were ruled on before trial. Appellant did not receive the trial
court’s permission to appeal, and there is no specific statutory authorization that
would authorize an appeal in this case. Under these circumstances, we must dismiss
the appeal without further action. See TEX. R. APP. P. 25.2(d); Chavez v. State, 183
S.W.3d 675, 680 (Tex. Crim. App. 2006).
We requested appellant and the State to file letter briefs addressing the
jurisdictional issue. Appellant argues he did not waive his right of appeal and that
his timely notice of appeal established this Court’s jurisdiction, citing and quoting
Garza v. Idaho, 139 S. Ct. 738 (2019). Garza concerned whether an attorney
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rendered ineffective assistance of counsel by not filing a notice of appeal when told
to do so by the defendant even though the defendant pleaded guilty pursuant to a
plea bargain that included waiver of some—but not all—rights of appeal. Id. at 744–
46. The Supreme Court concluded that counsel was ineffective for not following the
defendant’s clear requests to file the appeal. Id. at 746 (“Where, as here, a defendant
has expressly requested an appeal, counsel performs deficiently by disregarding the
defendant’s instructions.”). In the case before us, appellant did not lack effective
assistance of counsel due to counsel’s failure to file a notice of appeal because
appellant’s counsel filed a notice of appeal. Also in Garza, the appellant “retained
a right to appeal at least some issues despite the waivers he signed,” which counsel
forfeited by not filing a notice of appeal. Id. at 747. In this case, appellant had no
right of appeal because the appeal was from a plea bargain, the record does not show
there were any pretrial motions ruled on before trial, and the trial court did not grant
appellant permission to appeal. See TEX. R. APP. P. 25.2(a). Garza does not address
appellate jurisdiction, and it does not hold that appellate jurisdiction exists when a
statute and rule provide there is no jurisdiction in an appeal from a judgment that
follows the terms of a plea bargain. We conclude Garza does not demonstrate that
this Court has jurisdiction over appellant’s appeal.
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We dismiss appellant’s appeal for want of jurisdiction.
/Dennise Garcia/
DENNISE GARCIA
Do Not Publish JUSTICE
TEX. R. APP. P. 47.2(b)
220912F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
KENNETH JEROME WYMON, On Appeal from the 195th Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. F22-54054-N.
No. 05-22-00912-CR V. Opinion delivered by Justice Garcia.
Justices Reichek and Nowell
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the appeal is DISMISSED for
want of jurisdiction.
Judgment entered February 8, 2023
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