Melvin Earl Robison, Jr. v. State

Opinion issued March 3, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00540-CR
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MELVIN EARL ROBINSON, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 149th District Court
Brazoria County, Texas
Trial Court Cause No. 71674
MEMORANDUM OPINION
On February 24, 2014, after appellant, Melvin Earl Robinson, Jr., pleaded
guilty to the state-jail-felony offense of theft with two or more previous convictions,
the trial court suspended appellant’s two-year state-jail sentence by placing him on
deferred adjudication community supervision for four years, pursuant to appellant’s
plea bargain with the State. See TEX. PENAL CODE ANN. § 31.03(e)(4)(D) (West
Supp. 2015); TEX. CODE CRIM. PROC. ANN. art. 42.12, § 15(a)(2)(A) (West Supp.
2015). After appellant pleaded true to most of the allegations in the State’s petition
for revocation of appellant’s probated sentence, the court revoked appellant’s
community supervision and assessed his punishment at twelve months in state jail
on November 21, 2014. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 15(f)(1).
This judgment was not appealed.
On May 27, 2015, appellant, proceeding pro se and incarcerated, filed a
motion in the trial court styled “Defendant[’]s Motion for 20% Credit Pursuant to
H.B. 2649,” in which appellant requested that the trial court reduce his sentence by
twenty percent for diligent participation. The trial court denied appellant’s motion
on June 1, 2015, and appellant attempted to appeal from the denial order. We
dismiss the appeal for lack of jurisdiction.
An appeal must be dismissed if a certification showing that the defendant has
the right of appeal has not been made part of the record. TEX. R. APP. P. 25.2(d); see
Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005). The Clerk of this
Court requested that the trial clerk file a certification of appellant’s right of appeal
from the June 1, 2015 order, if any, in a supplemental clerk’s record because there
was no certification attached to the notice of appeal or included in the clerk’s record.
See TEX. R. APP. P. 25.2(a)(2), (d), 37.1. On December 9, 2015, the trial clerk filed
in this Court a supplemental clerk’s record including a certificate of fact confirming
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that there was no certification of appellant’s right of appeal in the trial court’s records
for the June 1, 2015 order.1
Although rule 25.2(d) requires this Court to dismiss a criminal appeal when
the appellate record does not contain a certification showing that appellant has the
right to appeal, rule 44.4 prohibits us from dismissing a criminal appeal based on
the lack of a valid certification if the appellant has a right to appeal. See TEX. R.
APP. P. 25.2(d), 44.4(a); see also Dears, 154 S.W.3d at 615. 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. 2015); TEX. R. APP. P. 25.2(a)(2); see also Ragston v. State,
424 S.W.3d 49, 52 (Tex. Crim. App. 2014).
Although Section 15(h)(6) of article 42.12 of the Texas Code of Criminal
Procedure gives a sentencing judge the discretion to reduce a sentence by up to
twenty percent if the defendant serving a state jail felony sentence satisfies certain
conditions while “diligently participating in an educational, vocation, treatment, or
1
While it appears that appellant has since been released from custody, because a
notice sent to him by the Clerk of this Court was returned to sender on January 13,
2016, with the following on the envelope: “RTS RELEASE[D],” this Court still
must determine whether it has jurisdiction to review the order in question.
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work program,” there is no right of appeal from an order denying such credit. TEX.
CODE CRIM. PROC. ANN. art. 42.12, § 15(h)(1), (6) (noting that “[a] time credit under
this subdivision is a privilege and not a right.”). Because the records confirm that
there are no judgments of conviction or appealable orders, and no certifications
permitting appellant the right of appeal, we lack jurisdiction over this appeal. See
TEX. R. APP. P. 25.2(d); see, e.g., Williams v. State, No. 14-15-00837-CR, 2016 WL
145570, at *1 (Tex. App.—Houston [14th Dist.] Jan. 12, 2016, no pet. h.) (per
curiam) (mem. op.) (not designated for publication) (dismissing appeal for want of
jurisdiction because record contains no appealable order).
CONCLUSION
Accordingly, we dismiss this appeal for want of jurisdiction. See TEX. R. APP.
P. 25.2(d), 43.2(f). We dismiss any pending motions as moot.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Keyes and Higley.
Do not publish. TEX. R. APP. P. 47.2(b).
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