Opinion
03-24-00214-CR
08-21-2024
Bo Michael Dresner, Appellant v. The State of Texas, Appellee
Do Not Publish
FROM THE 274TH DISTRICT COURT OF HAYS COUNTY NO. CR-19-0800-B, THE HONORABLE GARY L. STEEL, JUDGE PRESIDING
Before Justices Baker, Smith, and Theofanis
MEMORANDUM OPINION
Edward Smith, Justice
Appellant Bo Michael Dresner was charged with 65 counts, including two counts of aggravated sexual assault of a child (counts II and III), two counts of continuous sexual abuse of a child (counts I and IV), two counts of indecency with a child by sexual contact (counts V and VI), and 59 counts of possession with intent to promote child pornography (counts VII through LXV). See Tex. Penal Code §§ 21.02, .11(d), 22.021(a)(1)(B), (f)(2), 43.26(g). In an open plea to the trial court, Dresner pleaded guilty to all 65 counts. The court found him guilty and, after a hearing on punishment, sentenced him to 75 years' confinement for counts I through IV; 20 years' confinement for counts V through X, XII, and XIV through XXI; and 10 years' confinement for counts XI, XIII, and XXII through LXV. The court also ordered that "the following counts will run consecutive or be stacked: I, IV, VII, VIII, IX, X, XII, XIV, XV, XVI, XVII, XVIII, XIX, XX and XXI." See id. § 3.03(b)(2)(A), (3)(A).
Dresner's total sentence amounts to 410 years.
In its certification of Dresner's right to appeal (Certification), which Dresner signed, the trial court certified that this "is a plea-bargain case, and the defendant has No right of appeal."
BACKGROUND
Dresner's convictions arose from his possession of child pornography and sexual abuse of his young daughters, Jessica and Rebecca. He initially pleaded not guilty to all 65 counts in this case, which proceeded to trial. However, during the State's direct examination of Rebecca, defense counsel approached the bench and expressed an intent not to cross-examine her. The State explained that it needed to prove its case, and counsel responded, "[W]e would have gone to the Court. I just hate to see something like [that] and hear something like that." The trial court excused the jury and clarified that Dresner had been willing to plead guilty and that "[t]here were other specs on it." The court then held an off-record discussion on the options available to the parties.
Because the children were minors at the time of the offenses, we will refer to them by pseudonyms in the interest of privacy. See Tex. R. App. P. 9.10(a)(3).
Following the discussion, Dresner waived his right to confront and cross-examine his daughters, stating, "I would rather them not even have to testify in the first place . . . . I want to spare them as much pain as possible." Counsel noted that Dresner was still willing to plead guilty to all counts to the trial court, which articulated two alternatives:
One is for us to continue to go through this trial in front of 14, ultimately 12, people and maybe or maybe not - we've seen juries that don't always make sense - but maybe or maybe not get us a guilty on 65 counts and then it will go to the Court for punishment; or we can take a plea of guilty to all counts, waive any rights to appeal and do the same thing.
And I will allow a full presentation of evidence that w[as]n't presented during the jury trial.
The State listed the terms of its "proposal" to Dresner: he would plead guilty in front of the jury, Rebecca would be permitted to testify at punishment, and defense counsel would stipulate to her forensic interview. The trial court instructed the parties to "get the paperwork done," emphasized that the court would spend "a little more time than usual" on the parties' right to a jury trial and the "waiver of appeal since we've started a trial," and asserted that the court wanted any issue of concern to the State "covered in the plea agreement" because it did not "want any games from the Defense on this."
The trial court repeatedly admonished Dresner that "any plea agreement" would waive "any and all rights to appeal." When asked whether he understood that "if we go through [with] this plea agreement, your rights to appeal are almost zero," Dresner replied, "Yes, Your Honor." The court again stressed Dresner's waiver of his right to appeal in the following exchange:
THE COURT: But if I do follow this agreement, do you understand you will have waived any and all rights to appeal?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And you understand by "any and all rights to appeal" it includes ineffective assistance of counsel; it includes any issues that I may have erroneously dealt with at the beginning of this trial.
There may be some miniscule opportunities for appeal on the punishment, but that will not affect your guilty plea. Just bring us back in and have to do punishment again.
There is - and I've been doing this for 25 years and no one has successfully appealed any plea I have ever taken. Do you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And you understand that the intent of a plea bargain agreement, along with the agreement as to what the punishment is - the intent is for you to understand that this is the end of the road and there are no more appeals?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And you understand that it may not be in the agreement, but I'm going to tell you this: I'm not going to hear a motion for new trial. Do you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: You generally have some kind of statutory right to a motion for new trial. If you file or have someone file a motion for new trial, I am not going to take it up. You will not get a hearing. Do you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: One of the reasons for that, for the record, is that I have been dealing with this case for at least the last six months. I've heard argument. I've seen the suppression hearing. We've had meetings in Chambers.
I feel that I am - although I made certain comments in front of the jury, that's usually so the jury doesn't have an impression that I've formed an opinion - well-acquainted with this case and I am not going to grant a motion for new trial, nor am I going to give you permission to appeal.
And you understand that?
THE DEFENDANT: Yes, Your Honor.
. . . .
THE COURT: I'm telling you now, I'm going to find you guilty and that the presentence investigation, regardless of what you tell my interviewer, will not change my mind; nor will it give you, in my opinion - because I've seen it over 25 years - give you any points of appeal?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And you understand that trying to change the Court's mind or set up appellate points, that this Court will be painfully aware of what you're trying to do?
My probation department has just been told that that's a possibility the State is concerned about.
And in no way, other than pissing me off, will it assist or affect your punishment by trying to later claim that you're not guilty of these 65 counts in this indictment.
THE DEFENDANT: Yes, Your Honor.
Following the trial court's admonitions, Dresner pleaded guilty to all 65 counts "based upon this open plea, full range of punishment with the ability to stack." Asked a final time whether he realized that "this is a plea bargain case and that [he] ha[d] no right to appeal," Dresner answered, "Yes, Your Honor." This appeal followed.
"Stacking" refers to the trial court's ordering sentences to run consecutively.
Pursuant to Anders v. California, Dresner's court-appointed attorney has filed a brief concluding that there are no arguably meritorious grounds for review and that the appeal is frivolous. See 386 U.S. 738, 744 (1967). However, because we lack jurisdiction, we will not review the appeal for reversible error. See Robinson v. State, No. 05-98-01250-CR, 1999 WL 615584, at *1 n.3 (Tex. App.-Dallas Aug. 16, 1999, no pet.) (per curiam) (not designated for publication) ("The fact that appellant's counsel filed an Anders brief does not change our analysis. The nature of the appeal is irrelevant if we do not have jurisdiction over the appeal.").
DISCUSSION
Jurisdiction concerns the power of the court to hear and determine a case; it is fundamental and cannot be ignored by a court. See State v. Riewe, 13 S.W.3d 408, 410 (Tex. Crim. App. 2000). As an appellate court, we have the power to determine sua sponte the threshold issue of whether we have jurisdiction over the appeal. In re Garcia, 363 S.W.3d 819, 821 (Tex. App.-Austin 2012, no pet.); see State v. Roberts, 940 S.W.2d 655, 657 (Tex. Crim. App. 1996), overruled on other grounds by State v. Medrano, 67 S.W.3d 892, 894 (Tex. Crim. App. 2002). If we determine that we lack jurisdiction, we have no power to dispose of the appeal other than to dismiss it for want of jurisdiction. Garcia, 363 S.W.3d at 821. When determining whether an appellant in a criminal case has the right to appeal, we examine the trial court's certification for defectiveness; a defective certification is one "which is correct in form but which, when compared to the record before the court, proves to be inaccurate." Dears v. State, 154 S.W.3d 610, 614 (Tex. Crim. App. 2005).
I. Existence of a Plea Bargain
In reviewing the Certification, we must first determine whether this is a plea-bargain case, in which a defendant's right to appeal is limited by Texas Rule of Appellate Procedure 25.2(a)(2) and article 44.02 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. art. 44.02; Tex.R.App.P. 25.2(a)(2).
Rule 25.2(a)(2) provides in relevant part:
In a plea bargain case-that is, a case in which a defendant's plea was guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant-a defendant may appeal only:
(A) those matters that were raised by written motion filed and ruled on before trial,
(B)after getting the trial court's permission to appeal, or
(C)where the specific appeal is expressly authorized by statute. Tex.R.App.P. 25.2(a)(2)."The term 'plea bargain' has a specific meaning under the rule, in line with the language of the statute." Ex parte Castillo, 664 S.W.3d 833, 834 n.3 (Tex. Crim. App. 2022). Plea bargaining "'is the process by which the defendant in a criminal case relinquishes his right to go to trial in exchange for a reduction in charge and/or sentence.'" Ex parte Cox, 482 S.W.3d 112, 116 (Tex. Crim. App. 2016) (quoting Perkins v. Third Court of Appeals, 738 S.W.2d 276, 282 (Tex. Crim. App. 1987)). The bargain may take the form of
a reduction in the charge, a promise of sentencing leniency, a promise of a recommendation from the prosecutor to the trial judge as to punishment, or some other concession by the prosecutor that he will not seek to have the trial judge invoke his full, maximum implementation of the conviction and sentencing authority he has.Id. Conversely, when a defendant makes an open plea, the trial court does not follow an agreed punishment recommendation from the State. See Jones v. State, 488 S.W.3d 801, 808 (Tex. Crim. App. 2016) ("[A]ppellant is correct that this was not a plea-bargain case because there was no agreed punishment recommendation.").
Article 44.02 similarly provides:
[B]efore the defendant who has been convicted upon either his plea of guilty or plea of nolo contendere before the court and the court, upon the election of the defendant, assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney may prosecute his appeal, he must have permission of the trial court, except on those matters which have been raised by written motion filed prior to trial.Tex. Code Crim. Proc. art. 44.02.
In the present case, Dresner entered an open guilty plea to all 65 counts and was subject to the "full range of punishment with the ability to stack." The State did not agree to a recommended sentence or to abandon or modify any of the charges and did not make a promise or concession regarding sentencing. Thus, this was not a plea-bargain case under rule 25.2(a)(2), see Tex. R. App. P. 25.2(a)(2), and the trial court's Certification was consequently defective, see Dears, 154 S.W.3d at 614.
Although the plea agreement recites, "In consideration of the Defendant's plea, the State of Texas will recommend the following," no sentence- or charge-bargaining is reflected in the agreement's terms.
II. Waiver
The absence of a plea bargain, however, does not preclude the existence of an agreement by which Dresner waived his right to appeal in exchange for a benefit conferred by the State. See Jones, 488 S.W.3d at 808 (explaining that although plea agreement was not plea bargain under rule 25.2, "that fact does not render invalid appellant's agreement to waive his appellate rights 'should the court accept the foregoing plea bargain agreement between [him] and the prosecutor'").
A valid waiver of the right to appeal prevents a defendant from appealing any issue without the trial court's permission. Carson v. State, 559 S.W.3d 489, 493 (Tex. Crim. App. 2018). A valid waiver is one that is made voluntarily, knowingly, and intelligently. Id. at 492. To determine whether a defendant has validly waived his right to appeal pursuant to a plea agreement, we look to the written agreement-applying general contract-law principles to determine its intended content-as well as to the formal record. See Jones, 488 S.W.3d at 805 (citing Ex parte De Leon, 400 S.W.3d 83, 89 (Tex. Crim. App. 2013)).
When, as here, a defendant's waiver of the right to appeal is made before sentencing, and there is no recommended sentence, the waiver will be upheld if the record shows that the defendant received consideration for the waiver. See id.; Jenkins v. State, 495 S.W.3d 347, 351 (Tex. App.-Houston [14th Dist.] 2016, no pet.) (considering whether record showed "that the State provided [defendant] with a benefit as part of a bargained-for exchange, thereby forming a plea agreement and supplying consideration for [defendant]'s waiver of his right to appeal"). The State may give consideration by waiving its right to a jury trial, so long as the record demonstrates that the waiver was made in exchange for the defendant's waiver of his right to appeal. See Carson, 559 S.W.3d at 494 (emphasis added); Ex parte Broadway, 301 S.W.3d 694, 698 (Tex. Crim. App. 2009) ("[T]he State did not want to consent to Applicant's waiver of a jury trial. Therefore, Applicant induced the State to consent by waiving his right to appeal."); see also Tex. Code Crim. Proc. art. 1.13(a) (requiring State to assent to defendant's waiver of jury trial).
The record in this case indicates that the State initially refused to forego a jury trial and relented only when Dresner consented to plead guilty pursuant to an agreement that included a waiver of his right to appeal. As the trial court noted, "[W]hile [Dresner] had wanted to do an open plea to the Court, the State had exercised its right to demand its jury trial." In part, the court explained, the State was concerned about the possibility that after pleading, Dresner would "try[] to change the Court's mind or set up appellate points." The court repeatedly underscored the importance of the agreement's inclusion of Dresner's waiver of his right to appeal: "if I do follow this agreement, do you understand you will have waived any and all rights to appeal"; "the intent of a plea bargain agreement, along with the agreement as to what the punishment is - the intent is for you to understand that this is the end of the road and there are no more appeals"; and "any plea agreement in front of me waives any and all rights to appeal."
The Court of Criminal Appeals has declined to examine the reasoning behind such decisions:
At first glance, Applicant's decision to enter an open plea and waive his right to appeal appears odd because the primary advantage to entering an open plea is a relatively unlimited right to appeal. Tex.R.App.P. 25.2(a). In contrast, in a plea-bargain case, the Rules of Appellate Procedure impose restrictions on a defendant's right to appeal. Id. Clearly, Applicant found an open plea more appealing than the State's plea-bargain offer, even without its primary benefit.Ex parte Broadway, 301 S.W.3d 694, 697 n.3 (Tex. Crim. App. 2009).
When the trial court asked whether there was "anything outside of [the court's] standard language" that the State wished to address "to avoid any of the issues that obviously [we]re of concern to [it]," the State responded, "No, Your Honor. It's just our normal plea paperwork usually has all of these stipulations of evidence." Nevertheless, the court asserted, "I don't know all of your issues. I want them all covered in the plea agreement. I don't want any - and I don't think there are, but I don't want any games from the Defense on this."
The plea paperwork signed by Dresner contained the following language:
WAIVER OF RIGHT OF APPEAL:
I, Bo Michael Dresner, Defendant in this cause, in writing and in open Court, with counsel, state that I understand that I have a right to appeal the conviction herein, and that following a conviction, if a defendant is indigent and desires to appeal, counsel will be appointed at no cost to the defendant. Now, understanding all rights in this connection, I waive and abandon all rights of appeal in this cause, including rights of appeal as to any pre-trial matters and competency of defense counsel.
. . . .
I further confirm that I completely understand all of the written waivers, stipulations and motions filed in connection with the plea, and that the execution of each was done freely, knowingly and voluntarily, and that I am guilty as charged.
We conclude from this record that the State's waiver of its right to a jury trial was given as consideration for-among other concessions-Dresner's waiver of his right to appeal. See Carson, 559 S.W.3d at 494; Jones, 488 S.W.3d at 805; see also Sabins v. State, No. 03-18-00732-CR, 2020 WL 3495859, at *6 (Tex. App.-Austin June 25, 2020, no pet.) (mem. op., not designated for publication) (conducting similar waiver analysis). The trial court affirmatively stated that it was not going to give Dresner permission to appeal, and consequently he may appeal no issue in this case. See Carson, 559 S.W.3d at 494.
We therefore dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 43.2(f); Garcia, 363 S.W.3d at 821.
It is unnecessary that we first obtain a corrected certification. See Osborne v. State, No. 03-16-00802-CR, 2017 WL 1315342, at *3 (Tex. App.-Austin Apr. 5, 2017, pet. ref'd) (mem. op., not designated for publication) ("[B]ecause the record before us shows that [defendant] has no right of appeal, contrary to the trial court's defective certification, we are not required to obtain an amended certification before dismissing this appeal.").
Dismissed for Want of Jurisdiction