Opinion
01-23-00432-CR
08-31-2023
ISAIAH RAMSES BENAVIDES, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 339th District Court Harris County, Texas Trial Court Case Nos. 1776718
Panel consists of Justices Goodman, Rivas-Molloy, and Guerra.
MEMORANDUM OPINION
PER CURIAM
Appellant Isaiah Ramses Benavides seeks to appeal the final judgment of the trial court convicting him of the third-degree felony offense of possession of a prohibited weapon and sentencing him to four years' confinement.
We dismiss the appeal for want of jurisdiction.
Background
Benavides pleaded guilty to the third-degree felony offense of possession of a prohibited weapon. Benavides signed a "Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession" ("Waiver of Rights") stating, "I intend to enter a plea of guilty and the prosecutor will recommend that his punishment should be set at 4 years [of confinement] and I agree to that recommendation." Benavides also stated, "I agree to waive any right of appeal which I may have should the court accept the foregoing plea bargain between myself and the prosecutor."
The trial court entered a judgment convicting Benavides of the charged offense and sentenced Benavides to four years' confinement. The judgment provides that Benavides waived his right to appeal and no permission to appeal has been granted. The "Trial Court's Certification of Defendant's Right of Appeal" ("Certification") similarly provides that Benavides's trial court case was "a plea-bargain case, and [Benavides] has NO right of appeal." Benavides subsequently filed a notice of appeal.
Discussion
A defendant in any criminal case has a right of appeal. Tex. Code Crim. Proc. art 44.02; Tex.R.App.P. 25.2(a)(2). Texas Rule of Appellate Procedure 25.2(a)(2) provides that in a criminal case, a trial court "shall enter a certification of the defendant's right of appeal each time it enters a judgment of guilt or other appealable order." Id. at 25.2(a)(2). When the defendant is the appellant in a criminal case, "the record must include the trial court's certification of the defendant's right of appeal." Tex.R.App.P. 25.2(d). If the certification showing the defendant has the right of appeal has not been made part of the record, the appeal must be dismissed. See Tex. R. App. P. 25.2(d); Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005).
The rule provides an exception for orders "appealable under Code of Criminal Procedure Chapter 64." Tex.R.App.P. 25.2(a)(2).
The trial court's Certification and Benavides's Waiver of Rights are both included in the appellate record. The Certification provides that Benavides "has NO right of appeal." And the Waiver of Rights provides that Benavides waived his right of appeal. As discussed below, the record supports the trial court's Certification that Benavides waived his right to appeal. See Dears, 154 S.W.3d at 615.
A defendant in any criminal prosecution for any offense may waive any rights secured him by law. Tex. Code Crim. Proc. art 1.14. A valid waiver of appeal- one made voluntarily, knowingly, and intelligently-prevents a defendant from appealing without the trial court's consent. Carson v. State, 559 S.W.3d 489, 492- 93 (Tex. Crim. App. 2018). "An agreement placing a cap on punishment is a plea bargain for purposes of Texas Rule of Appellate Procedure 25.2(a)(2)." Butler v. State, No. 01-18-00016-CR, 2018 WL 4087322, at *1 (Tex. App.-Houston [1st Dist.] Aug. 28, 2018, no pet.) (per curiam) (mem. op.).
Under the Code of Criminal Procedure, a defendant may not waive his right to a jury trial unilaterally. The court and the State must consent to the waiver. See TEX. CODE CRIM. PROC. 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 Article 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."). In his Waiver of Rights, Benavides stated that in open court and prior to entering his plea, he "waive[d] the right of trial by jury[,]" "intend[ed] to enter a plea of guilty[,]" and that "[he] agree[d] to [the prosecutor's] recommendation" of punishment of four years of confinement. Benavides further stated that "[he] waive[d] any right of appeal which [he] may have should the court accept the foregoing plea bargain between [him]self and the prosecutor."
When, as here, a defendant pleads guilty and the punishment assessed does not exceed the punishment recommended by the State prosecutor and agreed to by the defendant, the plea-bargaining defendant has no right of appeal. Shankle v. State, 119 S.W.3d 808, 814 (Tex. Crim. App. 2003) (holding plea-bargaining appellant had no right of appeal because he pleaded guilty and the punishment assessed did not exceed the recommendation by the State). The trial court's Certification that Benavides has "NO right of appeal" is thus supported by the record.
Because the record establishes Benavides pleaded guilty with a recommendation as to punishment and the punishment assessed did not exceed the State's recommendation, and the trial court has not given Benavides permission to appeal, Benavides has no right to appeal. See Tex. R. App. P. 25.2(a)(2); Dears, 154 S.W.3d at 613. We dismiss this appeal for want of jurisdiction. See Tex. R. App. P. 43.2(f). Any pending motions are denied as moot.