Opinion
No. 05-17-00418-CR
07-06-2017
ANDREA LANE WHITNEY, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 380th Judicial District Court Collin County, Texas
Trial Court Cause No. 380-80493-2016
MEMORANDUM OPINION
Before Justices Francis, Brown, and Schenck
Opinion by Justice Francis
Andrea Lane Whitney appeals the trial court's order granting the State's motion to dismiss a charge against her for tampering with physical evidence. We dismiss the appeal.
Appellant entered a "no contest" plea to a charge that she left the scene of an accident involving death. The parties agreed that in assessing her punishment, the trial court would take into account the separate charge for tampering with physical evidence. See TEX. PENAL CODE ANN. § 12.45(a) (West 2011) (allowing a defendant, with permission of prosecutor, to admit guilt of unadjudicated offense and have trial court take the admitted offense into account in sentencing defendant for adjudicated offense). Because the statute would bar further prosecution of the evidence tampering offense once it is taken into account in assessing sentence in the accident case, the State filed, and the trial court granted, a motion to dismiss the evidence tampering charge. See id. at §12.45(c). Appellant then appealed.
By letter dated May 2, 2017, the Court requested letter briefs from the parties addressing how the Court would have jurisdiction over an appeal arising from a dismissed case with no final judgment. Appellant did not respond to the Court's letter. The State has filed a June 23, 2017 motion to dismiss the appeal contending that without a final disposition adverse to appellant, there is no right to appeal. We agree with the State.
Appeals in criminal cases are permitted only when they are specifically authorized by statute. State ex rel. Lykos v. Fine, 330 S.W.3d 904, 915 (Tex. Crim. App. 2011); Abbott v. State, 271 S.W.3d 694, 696-97 (Tex. Crim. App. 2008). The code of criminal procedure provides a defendant a right to general appeal that is limited to final judgments. See TEX. CODE CRIM. PROC. ANN. art. 44.02 (West 2006); State v. Sellers, 790 S.W.2d 316, 321 n. 4 (Tex. Crim. App. 1990). The code of criminal procedure expressly provides the State a right to appeal an order dismissing an indictment, information, or complaint. See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(1) (West Supp. 2016). No such right is afforded to the defendant. See id. at art. 44.01(j) (defendant's right to appeal accrues after punishment assessed); see also Ryan v. State, 198 S.W. 582, 583 (Tex. Crim. App. 1917) (refusing to consider appeal of order dismissing case).
Because appellant has no right to appeal the dismissal, we have no jurisdiction and must dismiss the appeal. See Abbott, 271 S.W.3d at 697.
We grant the State's motion and dismiss the appeal for want of jurisdiction.
/Molly Francis/
MOLLY FRANCIS
JUSTICE Do Not Publish
TEX. R. APP. P. 47
170418F.U05
JUDGMENT
On Appeal from the 380th Judicial District Court, Collin County, Texas
Trial Court Cause No. 380-80493-2016.
Opinion delivered by Justice Francis. Justices Brown and Schenck participating.
Based on the Court's opinion of this date, the appeal is DISMISSED. Judgment entered July 6, 2017.