Opinion
NUMBER 13-19-00010-CR
02-28-2019
JOE RAYMOND FLORES, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 25th District Court of Gonzales County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Hinojosa
Memorandum Opinion by Justice Benavides
Appellant Joe Raymond Flores attempts to appeal his conviction for the offense of "hindering apprehension or prosecution, which was enhanced to a second-degree felony. See TEX. PENAL CODE ANN. § 38.05 (West, Westlaw through 2017 1st C.S.). The trial court has certified that this "is a plea-bargain case, and the defendant has NO right of appeal." See TEX. R. APP. P. 25.2(a)(2).
On January 8, 2019, this Court notified appellant's counsel of the trial court's certification and ordered counsel to: (1) review the record; (2) determine whether appellant has a right to appeal; and (3) forward to this Court, by letter, counsel's findings as to whether appellant has a right to appeal, or, alternatively, advise this Court as to the existence of any amended certification.
On January 16, 2019, counsel filed a letter brief with this Court. Counsel discussed the plea agreement between appellant and the State, under which appellant would plead guilty to the offense charged, with a "cap of 7 years" provided for the term of confinement. The plea agreement further expressly provided that "If the defendant fails to appear in court on the date set for the sentencing/punishment hearing or commits a new crime, the defendant agrees that the State may advocate a higher punishment and the judge may increase the defendant's sentence to include the full range of punishment."
Counsel asserted that the trial court expressly advised appellant of these conditions and that the seven-year cap would no longer apply if either event occurred and he could be sentenced anywhere within the two-to-twenty-year punishment range. The court did not expressly ask appellant whether he wanted to withdraw his guilty plea and proceed to trial. Appellant failed to appear at his sentencing hearing and committed a new offense. The trial court assessed appellant a twelve-year sentence.
Counsel asserts that "there appears to be an arguable issue on whether Mr. Flores was ever given an opportunity to withdraw his guilty plea and proceed to trial, or whether Flores understood he could do that in the questioning by his trial counsel." He contends that the punishment imposed exceeded the punishment agreed to by the prosecutor and appellant, meaning that Rule 25.2(a)(2) would not warrant a dismissal of this appeal. Counsel for appellant further filed a motion to amend the trial court's certification of the right to appeal and requested that we permit the appeal to proceed.
Because of the ambiguity of the record and certification, we abated and remanded this case to the trial court for re-certification of appellant's right of appeal. See TEX. R. APP. P. 34.5(c), 44.3, 44.4; Dears v. State, 154 S.W.3d 610, 614 (Tex. Crim. App. 2005). We requested the trial court to conduct a hearing addressing the foregoing matter. We directed the trial court to recertify whether appellant has the right to appeal after conducting the hearing. We requested the trial court to include the amended certification in a supplemental clerk's record to be filed with this Court.
We have now received and reviewed the supplemental clerk's record and the trial court's amended certification. The trial court's amended certification again provides that this "is a plea-bargain case, and the defendant has NO right of appeal." See TEX. R. APP. P. 25.2(a)(2).
We reinstate the appeal. Having considered and fully examined counsel's response and motion, the records filed with this Court, and the trial court's amended certification, we conclude that the amended certification correctly reflects that appellant has no right to appeal. See Hallmark v. State, 541 S.W.3d 167, 168 (Tex. Crim. App. 2017) (concluding that the trial court properly followed a plea bargain by assessing a conditional sentence, rather than an agreed term sentence, when the plea bargain allowed for a different sentence to be imposed for the appellant's failure to appear at sentencing); Costilow v. State, 318 S.W.3d 534, 540 (Tex. App.—Beaumont 2010, no pet.) (concluding that the appellant had no right to appeal where the plea bargain was conditioned on appellant's appearance at sentencing with nonappearance to be sentenced as reflected in the modified plea agreement). Accordingly, we deny appellant's motion for amendment of the trial court's certification and we DISMISS the appeal.
GINA M. BENAVIDES,
Justice Do not publish.
See TEX. R. APP. P. 47.2(b). Delivered and filed the 28th day of February, 2019.