No. 09-08-00168-CR
Submitted on October 23, 2009.
Opinion Delivered November 4, 2009. DO NOT PUBLISH.
On Appeal from the 258th District Court, San Jacinto County, Texas, Trial Cause No. 9466.
Before GAULTNEY, KREGER, and HORTON, JJ.
CHARLES KREGER, Justice.
Robert E. Henderson pleaded nolo contendere to the charge of terroristic threat as set out in the State's indictment. On February 27, 2008, at the conclusion of the punishment hearing, the trial court, in open court, sentenced Henderson to ten years of confinement in the Texas Department of Criminal Justice, Correctional Institutions Division. In consideration of Henderson's plea of nolo contendere, the State agreed to dismiss a second pending cause, 9467. Also on February 27, 2008, the trial court certified Henderson's right of appeal for the designated reason that this was "not a plea-bargain case[.]" Henderson's signature appears on this document, but not that of his trial counsel. A reporter's record was prepared of both the plea and sentencing proceedings. Thereafter, on March 13, 2008, Henderson gave a statement under oath that he waived his right to appeal his conviction for terroristic threat, stating he was "not going to appeal" his conviction and ten year sentence. On March 28, 2008, a motion for new trial, motion in arrest of judgment, motion for reasonable bail pending appeal, and notice of appeal were filed on Henderson's behalf by retained counsel. However, on March 31, 2008, the trial court signed a second certification of Henderson's right of appeal, stating: "I, judge of the trial court, certify this criminal case that the defendant has voluntarily waived his right to appeal." Henderson's signature appears on this document along with that of his appointed trial counsel. On April 18, 2008, this cause was transferred from the 258th District Court to the 411th District Court in San Jacinto County. On May 12, 2008, Henderson's motion for new trial was heard in the 411th District Court and was denied by the trial court. Appellate counsel now brings forward five issues for our consideration. However, as the record reflects the existence of a negotiated plea of nolo contendere by Henderson, and the existence of a valid waiver of appeal by Henderson, without subsequent permission of the trial court to appeal, we must dismiss the appeal for want of jurisdiction. See Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006); Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003).
RIGHT OF APPEAL UNDER THE FEBRUARY 28, 2008 CERTIFICATION
As noted above, the State announced to the trial court that it was dismissing another pending criminal action against Henderson in exchange for his plea to the terroristic threat offense. This is an example of "charge-bargaining" between the State and the defendant. "Charge-bargaining" relates to plea agreements concerning whether the defendant will plead guilty to the offense alleged or to some lesser or related offense, or whether the State will dismiss, or refrain from bringing, other charges. See Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003). In Shankle, the Court observed that charge-bargaining affects punishment, and pointed out that an agreement by the State to dismiss a pending charge, or not to bring an available charge, effectively placed a cap on punishment at the maximum sentence for the charge not dismissed. Id. A defendant convicted upon a plea of guilty or no contest pursuant to a plea bargain agreement may appeal only those matters that were raised by written motion and ruled on before trial or after obtaining the trial court's permission to appeal. See Tex. Code Crim. Proc. Ann. art. 44.02 (Vernon 2006); Tex. R. App. P. 25.2(a)(2). A reviewing court that has an appellate record before it must review that record to ascertain whether the certification is defective. Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005); Odneal v. State, 161 S.W.3d 692, 694 (Tex. App.-Beaumont 2005, pet. ref'd). A certification is defective if it is correct in form "but which, when compared with the record before the court, proves to be inaccurate." Dears, 154 S.W.3d at 614. The recitations in a certification must be true and supported by the record. Saldana v. State, 161 S.W.3d 763, 764 (Tex. App.-Beaumont 2005, no pet.). In the instant case, the first certification, dated February 27, 2008, authorizes Henderson to appeal because his case did not involve a plea bargain. The record shows otherwise because, as noted above, Henderson's plea was in exchange for the State's agreement to dismiss another pending charge in cause number 9467. Therefore, any appeal by Henderson would be limited to only matters raised by written motion filed and ruled on before trial, or would be proper if prior permission had been granted by the trial court. See id. As the record does not reflect the presence of either of these two exceptions, we are required to dismiss the appeal for lack of jurisdiction. See Chavez, 183 S.W.3d at 680 ("[C]ourt of appeals [has] jurisdiction to ascertain whether an appellant who plea-bargained is permitted to appeal by Rule 25.2(a)(2), [and] must dismiss a prohibited appeal without further action, regardless of the basis for the appeal"). RIGHT OF APPEAL UNDER THE MARCH 31, 2008 CERTIFICATION
We interpret the trial court's wording of the March 31, 2008, certification as a determination that Henderson had no right of appeal because of his voluntary waiver of the right. See Tex. R. App. P. 25.2(a)(2), (d) app. at 399 ("Certification of Defendant's Right of Appeal"). A defendant in a noncapital case may waive any of the rights secured him by law. Tex. Code Crim. Proc. Ann. art. 1.14(a) (Vernon 2005). The general rule is that a valid waiver of appeal — one made voluntarily, knowingly, and intelligently — will prevent a defendant from appealing without the consent of the trial court. See Monreal, 99 S.W.3d at 617, 622. This rule does not depend upon the existence of a plea bargain, and applies to negotiated and non-negotiated pleas. Id. at 622. The record before us indicates Henderson had already been sentenced when he expressed his desire to waive appeal of his conviction. The circumstances surrounding Henderson's waiver appear to comply with the requirements for a knowing and intelligent waiver of direct appeal as discussed in Ex parte Reedy, 282 S.W.3d 492, 496-98 (Tex. Crim. App. 2009). Further, Henderson does not assert otherwise, and nothing appears in the record to indicate the trial court gave Henderson permission to appeal subsequent to his waiver. In his brief, appellate counsel speculates that Henderson's waiver of appeal and his direction to trial counsel not to file an application for community supervision on his behalf can be explained by the fact that Henderson was incompetent to stand trial. Appellate counsel further contends that because of his incompetence, Henderson "insisted on preventing his attorney, Travis Kitchens, from advocating for him in a meaningful way." Appellate counsel relies on the initial competency evaluation of Henderson following his arrest as the basis for this theory. However, the record includes two subsequent competency evaluations conducted on Henderson and a non-evidentiary hearing conducted on December 12, 2007, by the trial court, during which trial counsel stipulated to Henderson's competency pursuant to Henderson's request "so we can proceed on and set this for a pretrial hearing and then set it on a jury docket[.]" Based upon the facts and circumstances presented, we find that the trial court's March 31, 2008, Rule 25.2(d) certification that states that Henderson waived his right to appeal is true and is supported by the record. See Dears, 154 S.W.3d at 614-15. CONCLUSION
Because Henderson's no contest plea was the product of a negotiated plea agreement that was complied with by the State, and because Henderson knowingly, intelligently, and voluntarily waived his right to appeal after his sentence had been assessed and did not thereafter secure permission to appeal from the trial court, we must dismiss this appeal for want of jurisdiction. See Rule 25.2(a)(2); Monreal, 99 S.W.3d at 617, 622. APPEAL DISMISSED FOR WANT OF JURISDICTION.