Opinion
14-22-00923-CR
07-30-2024
FREDERICK WHITAKER, IV Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court Harris County, Texas Trial Court Cause No. 1713238
Panel consists of Justices Wise, Zimmerer, and Wilson.
ABATEMENT ORDER
PER CURIAM
Appellant Frederick Whitaker, IV was convicted of the felony offense of aggravated robbery with a deadly weapon. In his sole appellate issue appellant asserts that the trial court violated his right to confrontation under the Sixth Amendment to the United States Constitution when the trial court failed to secure appellant's presence at a motion for new trial hearing. The State has argued on appeal that appellant has waived his right to appeal.
In its first certification under Texas Rule of Appellate Procedure 25.2(a)(2), the trial court certified that this case "[i]s a plea-bargain case, and the defendant has NO right of appeal." The trial court later signed a second certification that this case "is not a plea-bargain case, and the defendant has the right of appeal." The trial court did not certify that appellant has waived the right of appeal, which is an option on the certification form. Thus, in its current certification, the trial court has certified that appellant has the right of appeal. If this certification is accurate, then appellant has the right to appeal and has not waived that right. See Tex. R. App. P. 25.2(a).
This court has an obligation to review the record and determine whether the trial court's Rule 25.2(a)(2) certification is defective. See Jones v. State, 488 S.W.3d 801, 805 (Tex. Crim. App. 2016). To determine the validity of an appellant's waiver of the right to appeal we consider the written plea documents and the trial court record in light of general contract law principles. See Jones, 488 S.W.3d at 805; Lopez v. State, 595 S.W.3d 897, 900 (Tex. App.-Houston [14th Dist.] 2020, pet. ref'd). Even though a certification may be correct in form, if the certification is contrary to the appellate record, the certification is defective. See Jones, 488 S.W.3d at 804; Dears v. State, 154 S.W.3d 610, 614 (Tex. Crim. App. 2005). Thus, we review the appellate record to determine whether the trial court's Rule 25.2(a)(2) certification is contrary to the record and thus defective. See Jones, 488 S.W.3d at 805.
The record reflects that appellant filed a motion for community supervision in which he swore that he had never been convicted of a felony in Texas or any other state and in which he asked the trial court to place him on community supervision. The record also reflects that appellant signed a document entitled "Waiver of
Constitutional Rights, Agreement to Stipulate, and Judicial Confession" (the "Waiver Document"). The Waiver Document provides as follows:
• In open court and before entering his plea, appellant waived his right to a jury trial.
• Appellant also waived the appearance, confrontation, and cross-examination of witnesses, as well as his right against self-incrimination.
• Appellant confessed to the truth of the allegations in the indictment in this case.
• The State asked the trial court to make an affirmative finding of the use or exhibition of a deadly weapon, and appellant agreed that the trial court should make this finding.
• Appellant stated that he understood that he had not reached an agreement with the State as to punishment.
• Appellant also stated: "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 . . . Further, in exchange for the state giving up [its] right to trial, I agree to waive any right of appeal which I may have."
Emphasis in the original.
The attorney representing the State signed the Waiver Document and stated that she consented to and approved the above waiver of trial by jury and stipulation of evidence. The trial court approved the Waiver Document, and appellant entered a plea of guilty. In the Waiver Document, appellant states that he agrees to waive any right of appeal which he may have in exchange for the State "giving up [its] right to trial." Given the other references in the Waiver Document to the State waiving its right to a jury trial, in context and under the unambiguous language of the document, appellant agreed to waive any right of appeal which he may have in exchange for the State waiving its right to a jury trial. The record also reflects that the trial court admonished appellant that the only type of community supervision that the court could give appellant was deferred adjudication community supervision and that shock probation and regular community supervision were not available.
After appellant pleaded "guilty" the trial court did not make a finding of guilt, and the pre-sentence investigation report was generated. The trial court then conducted a punishment hearing at which the State and appellant called witnesses. Appellant's counsel emphasized that appellant had no prior convictions and argued appellant was a good candidate for deferred adjudication community supervision. The trial court declined to place appellant on deferred adjudication community supervision and instead assessed punishment at ten years' confinement.
A defendant in any criminal action has the right of appeal. See Tex. Crim. App. Pro. Ann. art. 44.02. However, a defendant may waive this right. See Tex. Crim. App. Pro. Ann. art. 1.14; Ex parte Broadway, 301 S.W.3d 694, 697 (Tex. Crim. App. 2009). A defendant's waiver of the right to appeal will be enforced if the defendant knowingly, and intelligently waived this right. See id. A case in which there is no punishment recommended by the prosecutor and agreed to by the defendant is not a plea bargain case. See Tex. R. App. P. 25.2(a); Ex parte Broadway, 301 S.W.3d at 697. Even if a case is not a plea bargain case, a defendant's waiver of appeal is enforceable if the State shows that the defendant received bargained-for consideration in exchange for the defendant's waiver of the right to appeal. See Ex parte Broadway, 301 S.W.3d at 697-98; Lopez, 595 S.W.3d at 900. A defendant may waive the defendant's right to a jury trial to ensure that the trial court would be able to consider placing the defendant on deferred adjudication community supervision. See Ex parte Broadway, 301 S.W.3d at 697-98; Lopez, 595 S.W.3d at 900. Under the Code of Criminal Procedure, a defendant may not unilaterally waive the right to a jury trial; instead, the State and the trial court must consent to the waiver. See Tex. Crim. App. Pro. Ann. art. 1.13; Ex parte Broadway, 301 S.W.3d at 698. A defendant may receive bargained-for consideration by inducing the State to waive its right to a jury trial so that a defendant may be considered for deferred adjudication community supervision, in exchange for the defendant's waiver of the right to appeal. See Tex. Crim. App. Pro. Ann. art. 1.13; Ex parte Broadway, 301 S.W.3d at 697-98; Lopez, 595 S.W.3d at 900-901. A defendant may knowingly and intelligently waive his entire appeal as a part of a plea, even when sentencing is not agreed upon, if this type of consideration is given by the State in exchange for that waiver. See Ex parte Broadway, 301 S.W.3d at 699; Lopez, 595 S.W.3d at 900-901.
The record reflects that appellant wanted the trial court to place him on deferred adjudication community supervision, which would require appellant to waive his right to a jury trial and the State to waive its right to a jury trial. See Tex. Crim. App. Pro. Ann. art. 1.13; Ex parte Broadway, 301 S.W.3d at 698. In context and under the unambiguous language of the Waiver Document, appellant agreed to waive any right of appeal which he may have in exchange for the State waiving its right to a jury trial. The record shows that the State provided appellant with a benefit as part of a bargained-for exchange that supplies consideration for appellant's waiver of the right to appeal. See Ex parte Broadway, 301 S.W.3d at 697-98; Lopez, 595 S.W.3d at 900 (concluding that waiver of appeal was valid when appellant wanted to be considered for deferred adjudication community supervision and when appellant agreed that "in exchange for the state giving up [its] right to a jury trial, I agree to waive any right of appeal which I may have"). The record shows appellant voluntarily, knowingly, and intelligently waived his right to appeal. See Ex parte Broadway, 301 S.W.3d at 697-98. Therefore, this waiver is valid and prevents appellant from appealing. See Ex parte Broadway, 301 S.W.3d at 697-98; Lopez, 595 S.W.3d at 900-901.
The trial court's Rule 25.2(a)(2) certification of appellant's right to appeal provides that this "is not a plea-bargain case, and the defendant has the right of appeal." The record shows that this is not a plea-bargain case and that appellant has validly waived the right of appeal. See Ex parte Broadway, 301 S.W.3d at 697-98; Lopez, 595 S.W.3d at 900-901. Because the certification contradicts the appellate record, the law deems it defective. See Jones, 488 S.W.3d at 804; Dears, 154 S.W.3d at 614.
Accordingly, we ORDER the appeal ABATED and direct the trial court to correct the defective certification by filing an amended Rule 25.2(a)(2) certification consistent with our determination that the record shows (1) this is not a plea-bargain case and (2) appellant has voluntarily, knowingly, intelligently, and validly waived the right of appeal. The trial court's amended certification is to be included in a supplemental clerk's record and transmitted to this court no later than August 9, 2024. We are not abating the appeal so that the trial court may hold a hearing on appellant's motion for new trial. The appeal will be reinstated when the supplemental clerk's record has been filed. This court may reinstate the appeal on the motion of any party or on its own motion.