Full Opinion (html_with_citations)

DISMISSED and Opinion Filed December 30, 2022




                                      In The
                            Court of Appeals
                     Fifth District of Texas at Dallas
                               No. 05-22-01007-CR

                         YAT HO WONG, Appellant
                                   V.
                       THE STATE OF TEXAS, Appellee

                On Appeal from the County Court at Law No. 6
                            Collin County, Texas
                    Trial Court Cause No. 006-82725-2020

                        MEMORANDUM OPINION
                Before Justices Pedersen, III, Goldstein, and Smith
                         Opinion by Justice Pedersen, III
      Before the Court is appellant Yat Ho Wong’s October 12, 2022 motion to

dismiss this appeal. We deny appellant’s motion and dismiss the appeal on other

grounds.

      On September 23, 2022, appellant filed a pro se notice of appeal giving notice

of his intent “to appeal the conviction dated the 15th day of September, 2022.” The

notice of appeal lists three cases. Two of the three cases referenced, cause nos. 05-

22-01005-CR and 05-22-01006-CR, arise from the 219th Judicial District Court. The

case currently before the Court, cause no. 05-22-01007-CR, arises from Collin
County Court at Law No. 6. The Court has dismissed the appeal in cause no. 05-22-

01005-CR. See Wong v. State, No. 05-22-01005-CR,
2022 WL 17175012
, at *2

(Tex. App.—Dallas Nov. 23, 2022, no pet.) (mem. op., not designated for

publication).

      In the motion to dismiss pending before this Court, appellant’s counsel relates

that he was appointed to represent appellant after appellant filed his pro se notice of

appeal. Counsel states appellant was convicted in cause no. 05-22-01006-CR on

September 15, 2022 and he will continue to appeal that cause. Counsel states the

trial court dismissed cause no. 05-22-01007-CR by order entered on February 9,

2022, and appellant will not be appealing the order of dismissal. Both counsel and

appellant signed the motion to dismiss. See TEX. R. APP. P. 42.2(a) (requiring both

appellant and counsel to sign motion to dismiss appeal). Appellant, however,

included beside his signature the words “under duress.”

      In the absence of evidence shedding light on the voluntariness of appellant’s

signature, we conclude we cannot grant a voluntary dismissal when the appellant

signs the motion to dismiss with a notation that he signed under duress. See id.;

Connors v. State,
966 S.W.2d 108, 110
 (Tex. App.—Houston [1st Dist.] 1998, pet.

ref’d) (explaining apparent purpose of rule 42.2(a) signature requirement to protect

defendant from having appeal dismissed by counsel without defendant’s consent and

to provide counsel with notice so counsel can advise defendant about dismissal).

Accordingly, we deny the motion to dismiss.

                                         –2–
      Although we cannot grant appellant’s motion to dismiss, we conclude

dismissal is proper. The Court did not receive any documents from the trial court

clerk regarding cause no. 05-22-01007-CR. However, a review of the trial court’s

online docket sheet and records, publicly available via Collin County’s official

website, shows, as counsel has represented, that the trial court dismissed cause no.

05-22-01007-CR on February 9, 2022. See In re Johnson,
599 S.W.3d 311
, 311 &

n.1 (Tex. App.—Dallas 2020, orig. proceeding) (appellate court may take judicial

notice of publicly-available online court records in determining its jurisdiction).

Thus, there is no September 15, 2022 conviction to appeal in this case.

      Furthermore, appellant may not appeal the February 9, 2022 dismissal order.

A defendant may appeal only from judgments and appealable orders. See TEX. CODE

CRIM. PROC. ANN. art. 44.02; TEX. R. APP. P. 25.2(a)(2). A dismissal order is not an

appealable order. See Bohannon v. State,
352 S.W.3d 47, 48
 (Tex. App.—Fort Worth

2011, pet. ref’d) (order dismissing charging instrument is not appealable order for

defendant under rule 25.2(a)(2)); Petty v. State,
800 S.W.2d 582
, 583–84 (Tex.

App.—Tyler 1990, no pet.) (per curiam) (dismissal of indictment is not appealable

order).

          Moreover, even if appellant could appeal the dismissal order, his notice of

appeal would be untimely. A defendant perfects an appeal by filing with the trial

court clerk, within thirty days after the date sentence was imposed or the trial court

enters an appealable order, or within ninety days after sentencing if the defendant

                                          –3–
timely filed a motion for new trial, a written notice of appeal showing his desire to

appeal. See Tex. R. App. P. 25.2(b–c), 26.2(a). A timely filed notice of appeal is

required to invoke this Court’s jurisdiction. Castillo v. State,
369 S.W.3d 196, 198

(Tex. Crim. App. 2012). In the absence of a timely filed notice of appeal, we must

dismiss the appeal for want of jurisdiction.
Id.

      Appellant’s notice of appeal, filed September 23, 2022, is untimely and would

not trigger this Court’s jurisdiction to review an order signed on February 9, 2022.

See TEX. R. APP. P. 26.2(a).

      Because there is no September 15, 2022 conviction to appeal in this case, the

trial court’s order dismissing this case is not an appealable order, and the notice of

appeal is untimely even if the dismissal order was appealable, we dismiss cause no.

05-22-01007-CR for want of jurisdiction.




                                            /Bill Pedersen, III//
                                            BILL PEDERSEN, III
221007f.u05                                 JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)




                                         –4–
                           Court of Appeals
                    Fifth District of Texas at Dallas
                                JUDGMENT

YAT HO WONG, Appellant                      On Appeal from the County Court at
                                            Law No. 6, Collin County, Texas
No. 05-22-01007-CR         V.               Trial Court Cause No. 006-82725-
                                            2020.
THE STATE OF TEXAS, Appellee                Opinion delivered by Justice
                                            Pedersen, III. Justices Goldstein and
                                            Smith participating.

      Based on the Court’s opinion of this date, the appeal is DISMISSED for
want of jurisdiction.


Judgment entered this 30th day of December, 2022.




                                      –5–