holding that defendant may knowingly and intelligently waive appeal without sentencing agreement when consideration is given by State for waiver
How later courts described this case
- holding that defendant may knowingly and intelligently waive appeal without sentencing agreement when consideration is given by State for waiver
Written by the judges who cited it.
The opinion
Opinion issued March 26, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00683-CR
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RICKY DEWAYNE NICKERSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Case No. 1415899
MEMORANDUM OPINION
Appellant, Ricky Dewayne Nickerson, pleaded guilty to the state-jail felony
offense of burglary of a building.1 The trial court deferred making a finding of
guilt and, in accordance with the terms of appellant’s plea bargain agreement with
1
See TEX. PENAL CODE ANN. § 30.02(a)(1), (c)(1) (West 2011).
the State, placed appellant on community supervision for a period of three years.
The trial court certified that this was a plea-bargain case and that appellant had no
right of appeal.
Subsequently, the State moved to revoke appellant’s supervision and for
adjudication of guilt. Appellant pleaded true to the State’s allegations and
executed a waiver of his right to appeal, in exchange for the State’s
recommendation that punishment be assessed at confinement in the State Jail
Division of the Texas Department of Criminal Justice for nine months and
imposition of a $500 fine. The trial court revoked appellant’s community
supervision, adjudicated appellant guilty, and assessed appellant’s punishment in
accordance with the recommendation of the State. The trial court certified that
appellant has no right of appeal. Nevertheless, appellant filed a pro se notice of
appeal. We dismiss the appeal.
An appeal must be dismissed if a certification showing that the defendant
has the 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). The trial
court’s certification, which is included in the record on appeal, states that appellant
has no right of appeal.2 See TEX. R. APP. P. 25.2(a).
2
The certification of appellant’s right of appeal indicates that this “is a plea-bargain
case, and the defendant has NO right of appeal.” Because appellant is appealing
from his plea of true to a motion to adjudicate his guilt and not from a plea of
2
The record reflects that appellant swore to a stipulation of evidence and
judicial confession, pleading “true” to the allegations in the State’s motion to
adjudicate appellant’s guilt. The document contains an agreement that the State
would recommend revocation of appellant’s community supervision, punishment
of confinement for nine months, and imposition of a $500 fine. The document also
includes a “Waiver of Appeal,” stating that, “As part of my agreement with the
prosecutor to plead true, I AGREE TO WAIVE any right to appeal I may have
concerning any issue or claim in this case, including my plea or [sic] true or
admission of guilt.” Appellant separately initialed the waiver of appeal. The trial
court found the allegations true, adjudicated appellant guilty of the underlying
offense, and assessed punishment in accordance with the recommendation.
A valid waiver of appeal prevents a defendant from appealing without the
trial court’s consent. Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App.
2003). When a defendant waives his right of appeal in exchange for consideration
from the State, his waiver is made knowingly, intelligently, and voluntarily, and he
may not appeal any matters unless the trial court first grants permission. See Ex
guilty or nolo contendere to the original charge, appellant could not have entered
into a “plea bargain” and the certification is incorrect. See Hargesheimer v. State,
182 S.W.3d 906, 912–13 (Tex. Crim. App. 2006); Dears v. State, 154 S.W.3d 610,
613 (Tex. Crim. App. 2005); Gutierrez v. State, 108 S.W.3d 304, 309–10 (Tex.
Crim. App. 2003). Nevertheless, because the appellant waived his right to appeal
in exchange for the State’s recommendation on punishment, the trial court’s
certification correctly states that the appellant has no right to appeal and we do not
need to abate the case for the trial court to correct the certification. See infra.
3
parte Broadway, 301 S.W.3d 694, 697–99 (Tex. Crim. App. 2009) (holding that
defendant may knowingly and intelligently waive appeal without sentencing
agreement when consideration is given by State for waiver); Blanco v. State, 18
S.W.3d 218, 219–20 (Tex. Crim. App. 2000). The record shows that appellant
waived his right to appeal as partial consideration, along with his plea of true, for
the State’s recommendation on punishment and that the trial court did not give its
permission to appeal.
Because appellant has no right of appeal, we must dismiss this appeal. See
Menefee v. State, 287 S.W.3d 9, 12 n.12 (Tex. Crim. App. 2009); Dears, 154
S.W.3d at 613.
Accordingly, we dismiss the appeal for want of jurisdiction. We dismiss all
pending motions as moot.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Brown and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
4