Opinion
01-22-00303-CR
10-25-2022
DEMETRIUS LEWIS, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. TEX. R. APP. P. 47.2(b).
On Appeal from the 230th District Court Harris County, Texas Trial Court Case No. 16666780
Panel consists of Justices Goodman, Countiss, and Farris.
MEMORANDUM OPINION
JULIE COUNTISS JUSTICE
Appellant, Demetrius Lewis, without an agreed punishment recommendation from the State, pleaded guilty to the felony offense of sexual assault of a child. The trial court found appellant guilty and assessed appellant's punishment at confinement for five years. Appellant timely filed a notice of appeal.
See TEX. PENAL CODE ANN. § 22.011(a)(2), (c), (f).
We dismiss the appeal for lack of jurisdiction.
Appellant's appointed counsel on appeal filed an Anders brief stating that the record presents no reversible error and that the appeal is without merit and is frivolous. See Anders v. California, 386 U.S. 738, 744 (1967). However, our review of the record reveals that we lack jurisdiction over appellant's appeal.
The Texas Rules of Appellate Procedure clearly set out the right to appeal for criminal defendants. See Lagunas v. State, No. 01-20-00279-CR, 2020 WL 5823291, at *1 (Tex. App.-Houston [1st Dist.] Oct. 1, 2020, no pet.) (mem. op., not designated for publication). Texas Rule of Appellate Procedure 25.2 states that in a case where a defendant has voluntarily pleaded guilty, the defendant may only appeal those matters that were raised by written motion filed and ruled on before trial or after getting the trial court's permission. See TEX. R. APP. P. 25.2(a)(2); see also TEX. CODE CRIM. PROC. ANN. art. 44.02. The trial court must sign a certification of a defendant's right of appeal each time it enters a judgment of guilt or other appealable order. TEX. R. APP. P. 25.2(a)(2). An appeal must be dismissed if a certification showing that the defendant has a right of appeal has not been made part of the record. TEX. R. APP. P. 25.2(d); Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005). Here, the trial court's certification is included in the record on appeal. See TEX. R. APP. P. 25.2(d). It states that this "[i]s a plea-bargain case[] and [appellant] has NO right of appeal." TEX. R. APP. P. 25.2(a)(2). Appellant signed the trial court's certification. The trial court's judgment also states: "APPEAL WAIVED, NO PERMISSION TO APPEAL GRANTED." The record supports the trial court's certification.
We note that the trial court signed a second certification, which incorrectly stated that this was "not a plea-bargain case[] and [appellant] ha[d] the right to appeal." This second certification conflicts with the trial court's judgment and the record. Here, where the trial court's first certification is correct, we decline to order the trial court to amend its second certification to reflect that this was a plea-bargain case and appellant has no right to appeal because doing so would be a useless act. See Knox v. State, Nos. 02-19-00025-CR, 02-19-00026-CR, 2019 WL 1831794, at *3 (Tex. App.-Fort Worth Apr. 25, 2019, pet. ref'd) (mem. op., not designated for publication) (where trial court's first certification was correct, but second certification was incorrect, declining to remand case to trial court to amend second certification); Brooks v. State, No. 02-12-00196-CR, 2012 WL 2036473, at *2 (Tex. App.-Fort Worth June 7, 2012, no pet.) (mem. op., not designated for publication) ("The trial court's original certification of [defendant's] right to appeal was correct; the first amended certification [was] incorrect. We decline to order the trial court to amend the first amended certification to reflect that this is a plea-bargain case and that [defendant] has no right of appeal because doing so would be a useless act- [defendant] would still be unable to appeal his conviction."); Pena v. State, 323 S.W.3d 522, 524-27 (Tex. App.-Corpus Christi-Edinburg 2010, no pet.) (concluding in plea-bargain case that appellate court did "not need to order the trial court to correct the certification because the record affirmatively demonstrate[d] that [defendant] d[id] not have the right to appeal"); see also Rivera v. State, No. 05-21-01059-CR, 2022 WL 2680612, at *1-2 (Tex. App.-Dallas July 12, 2022, no pet.) (mem. op., not designated for publication).
Although a defendant has a statutory right to appeal his conviction, a defendant may waive his right to appeal in all but capital cases. Carson v. State, 559 S.W.3d 489, 492-93 (Tex. Crim. App. 2018). A valid waiver of appeal-one made voluntarily, knowingly, and intelligently-prevents a defendant from appealing without the trial court's consent. See id.; Ex parte Broadway, 301 S.W.3d 694, 69799 (Tex. Crim. App. 2009); see also Flores v. State, Nos. 01-20-00243-CR to 01-20-00246-CR, 2020 WL 2988564, at *1 (Tex. App.-Houston [1st Dist.] June 4, 2020, pet. ref'd) (mem. op., not designated for publication). "[A] defendant may knowingly and intelligently waive his appeal as part of a plea when consideration is given by the State, even when sentencing is not agreed upon." Carson, 559 S.W.3d at 494; see Jones v. State, 488 S.W.3d 801, 804-08 (Tex. Crim. App. 2016) (explaining presentence waivers of right of appeal have been upheld when record showed defendant received consideration for waiver); see also TEX. CODE CRIM. PROC. ANN. art. 1.14(a) ("The defendant in a criminal prosecution for any offense may waive any rights secured him by law ...."); Flores, 2020 WL 2988564, at *1.
Here, as part of his guilty plea, appellant signed a "Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession," stating:
I understand that I have not reached an agreement with the prosecutor as to punishment. However, in exchange for the State waiving [its] right to a jury trial, I intend to enter a plea of guilty without an agreed recommendation of punishment from the prosecutor and request that my punishment should be set by the Judge after a pre-sentence investigation report and hearing. I understand the [S]tate reserves the right to argue for full punishment at my sentencing hearing. I waive any further time to prepare for trial to which I or my attorney may be
entitled. Further, in exchange for the [S]tate giving up [its] right to trial, I agree to waive any right of appeal which I may have.(Emphasis omitted.) In exchange for appellant's waiver of his right to appeal, the State agreed to waive its right to a jury trial or, more precisely, the State consented to appellant's waiver of his right to jury trial. See TEX. CODE CRIM. PROC. ANN. art. 1.13(a) ("The defendant in a criminal prosecution for any offense other than a capital felony case in which the [S]tate notifies the court and the defendant that it will seek the death penalty shall have the right, upon entering a plea, to waive the right of trial by jury, conditioned, however, that, except as provided by [Texas Code of Criminal Procedure] [a]rticle 27.19, the waiver must be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the [S]tate." (emphasis added)); see also Harrison v. State, No. 01-20-00093-CR, 2020 WL 7776082, at *2 (Tex. App.-Houston [1st Dist.] Dec. 31, 2020, no pet.) (mem. op., not designated for publication); Flores, 2020 WL 2988564, at *2. By agreeing to waive its right to a jury trial, the State gave consideration for appellant's waiver of his right to appeal. See Carson, 559 S.W.3d at 492-96; Ex parte Broadway, 301 S.W.3d at 695-99; see also Lagunas, 2020 WL 5823291, at *1 (defendant voluntarily waived his statutorily created right of appeal in exchange for State waiving its right to jury trial); Flores, 2020 WL 2988564, at *2.
Appellant also signed a document titled, "Advice of Defendant's Right to Appeal," which advised appellant that if he "waived or gave up [his] right to appeal, [he] c[ould not] appeal [his] conviction." In signing that document, appellant affirmed that he "read and wr[o]te English" and he had read and understood the document.
Although appellant attempts to appeal from the trial court's judgment of conviction, the record is clear that appellant voluntarily waived his statutorily created right of appeal in exchange for the State waiving its right to a jury trial. If a defendant validly waives his right to appeal but nonetheless appeals, we must dismiss his appeal for lack of jurisdiction. See Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006) ("A court of appeals, while having jurisdiction to ascertain whether an appellant . . . is permitted to appeal by [Texas Rule of Appellate Procedure] 25.2(a)(2), must dismiss a prohibited appeal without further action, regardless of the basis for the appeal."); see also Badyrka v. State, No. 01-21-00339-CR, 2021 WL 5312651, at *1-2 (Tex. App.-Houston [1st Dist.] Nov. 16, 2021, no pet.) (mem. op., not designated for publication) (dismissing appeal in which appointed appellate counsel filed Anders brief because trial court's certification stated that it was "a plea-bargain case[] and [defendant] ha[d] NO right of appeal" (first alteration in original) (internal quotations omitted)); Harrison, 2020 WL 7776082, at *2; Terrell v. State, 245 S.W.3d 602, 605-06 (Tex. App.-Houston [1st Dist.] 2007, no pet.) (dismissing appeal in which appointed appellate counsel filed Anders brief because defendant had no right to appeal under Texas Rule of
Appellate Procedure 25.2(a)(2), and court was required to dismiss appeal without examining merits of appeal).
Accordingly, we dismiss the appeal for lack of jurisdiction. See TEX. R. APP. P. 43.2(f). We dismiss all pending motions as moot.