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Arnone v. State

Court of Appeals of Texas, Fifth District, Dallas
Jan 28, 2004
No. 05-03-01165-CR (Tex. App. Jan. 28, 2004)

Summary

holding that because the appellant could not have known what his sentence would be at the time he entered his plea, Monreal and Blanco are not controlling

Summary of this case from Ex Parte Delaney

Opinion

No. 05-03-01165-CR.

Opinion Filed January 28, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F02-01999-I. Affirm.

Before Justices MORRIS, WRIGHT, and RICHTER.


OPINION


Christopher George Arnone appeals his conviction for injury to a child. After appellant pleaded nolo contendere, the trial court, pursuant to a plea bargain agreement, placed appellant on deferred adjudication community supervision for ten years. Subsequently, the State filed a motion to revoke community supervision. After a hearing, the trial court adjudicated appellant guilty and assessed punishment at fifteen years' confinement. In two points of error, appellant contends the trial court erred by (1) certifying to this Court that appellant waived his right to appeal; and (2) overruling appellant's objection to the presentence investigation report (PSI). We conclude the trial court erred by certifying that appellant waived his right to appeal, but did not err by overruling appellant's objection to the presentence report. Thus, we affirm appellant's conviction. In his first issue, appellant contends the trial court erred by certifying he had waived his right to appeal. After reviewing the record, we agree. In November 2002, appellant pleaded nolo contendre pursuant to a plea bargain agreement. Appellant agreed to plead in exchange for ten years' deferred adjudication community supervision. At the same time, appellant executed a document entitled "Defendant's Waiver of Right of Appeal." In that document, appellant waived his right to appeal issues which were raised by written motion and ruled on prior to the plea, and his right to request permission of the trial court to appeal his conviction. Subsequently, the State filed a motion to adjudicate guilt. After a hearing, the trial court found appellant had violated the terms of his community supervision, adjudicated appellant's guilt, and assessed punishment at fifteen years' confinement. Appellant did not waive any rights at that time. The State, citing Blanco v. State, 18 S.W.3d 218, 219 (Tex.Crim.App. 2000), contends appellant waived his right to appeal his conviction in exchange for the prosecutor's agreed recommendation on punishment and must be held to his bargain. In Blanco, after the jury found the appellant guilty, he entered into an agreement not to appeal his conviction in exchange for the prosecutor's recommendation for a sixteen-year sentence. Id. at 219. The court of criminal appeals determined that because the appellant knew what his sentence would be if the trial court accepted his plea and knew what errors may have occurred during trial, appellant could be held to his bargain. Id. at 220. In Monreal v. State, 99 S.W.3d 615 (Tex.Crim.App. 2003), the court of criminal appeals determined that a waiver of the right to appeal, whether done pretrial or post-sentencing, is valid if the defendant is fully aware of the consequences at the time he enters the waiver. Id. at 622. The critical question in determining whether the waiver is valid is whether the defendant understood the consequences of the waiver. Id. at 621. Here, appellant signed the waiver at the time he pleaded, well before he was later adjudicated and sentenced to fifteen years. Because appellant could not have known what his sentence would be at the time he entered his plea, Monreal and Blanco are not controlling. A waiver of the right to appeal entered before the defendant is aware of the consequences of his plea is invalid. See Ex parte Thomas, 545 S.W.2d 469, 470 (Tex.Crim.App. 1977); Ex parte Townsend, 538 S.W.2d 419, 420 (Tex.Crim.App. 1976). Consequently, the trial court erred by certifying to this Court that appellant had waived his right to appeal. We sustain appellant's first point of error. The State also argues we lack jurisdiction to consider appellant's complaint because there is no appeal from the trial court's determination to proceed with an adjudication of guilt. See Tex. Code Crim. Proc. Ann. art. 42.12 § 5(b) (Vernon Supp. 2004). However, when the issue on appeal arises from what occurs after the adjudication of guilt, we do have jurisdiction. Kirtley v. State, 56 S.W.3d 48, 51 (Tex.Crim.App. 2001). Here, appellant complains the trial court erred by overruling his objection to the PSI, an issue arising after the adjudication of guilt. Thus, we have jurisdiction to consider appellant's complaint. In his second point of error, appellant contends the trial court erred by considering the PSI because it contains hearsay and violates his right to confrontation of witnesses. The court of criminal appeals recently addressed similar complaints regarding the use of a PSI in assessing punishment. The court of criminal appeals concluded that the rules of evidence do not apply to a PSI and it may contain otherwise inadmissible hearsay and information about a defendant's criminal history, including unadjudicated arrests. See Fryer v. State, 68 S.W.3d 628, 631-32 (Tex.Crim.App. 2002). Further, the trial court does not err by considering such information for general punishment assessment purposes. Id. at 632. Regardless of appellant's complaints that the court of criminal appeals has erroneously interpreted the PSI statute, as an intermediate court of appeals we are bound by the decisions of our state's highest criminal court. Purchase v. State, 84 S.W.3d 696, 701 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). We overrule appellant's second point of error. Accordingly, we affirm the trial court's judgment.


Summaries of

Arnone v. State

Court of Appeals of Texas, Fifth District, Dallas
Jan 28, 2004
No. 05-03-01165-CR (Tex. App. Jan. 28, 2004)

holding that because the appellant could not have known what his sentence would be at the time he entered his plea, Monreal and Blanco are not controlling

Summary of this case from Ex Parte Delaney
Case details for

Arnone v. State

Case Details

Full title:CHRISTOPHER GEORGE ARNONE, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Jan 28, 2004

Citations

No. 05-03-01165-CR (Tex. App. Jan. 28, 2004)

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Ex Parte Delaney

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