Opinion
No. 05-08-00652-CR
Opinion Filed August 27, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause No. 380-80583-08.
Before Justices FITZGERALD, LANG, and SMITH.
MEMORANDUM OPINION
Jeremy Vance Wickman pleaded guilty to burglary of a habitation and was sentenced to ten years in prison and a $1,000 fine. The State has filed an original and supplemental motion to dismiss the appeal, arguing appellant waived his right to appeal the instant case as part of two plea bargain agreements that resolved pending state jail felonies. We dismiss this appeal.
Discussion
Appellant's burglary trial concluded in April 2008. On April 16, 2008, the trial court sentenced appellant to ten years in prison. In June, the trial court completed a certificate of appeal stating that appellant had the right to appeal. But according to the State's motions to dismiss, three months later, in September 2008, appellant waived his right to appeal this case as part of plea bargain agreements that resolved two pending credit card abuse cases. The copies of the plea bargain agreements attached to the State's motions show that the waivers of appeal were initially typed, struck through, and then re-written by hand. In a letter to the trial court dated November 11, 2008, appellant's counsel stated that, from his conversation with trial counsel, it was his understanding that by accepting the State's plea bargains in the two other cases, appellant waived his right to appeal this case. In his letter, appellant's counsel also indicated that he had received a letter from appellant stating, "I didn't sign anything saying I drop my appeal and I do wish to continue." In order to determine whether or not appellant actually waived his right to appeal, appellate counsel requested "that a hearing be set as soon as possible." On May 20, 2009, we issued an order directing the trial court to conduct a hearing to determine whether appellant knowingly and intelligently waived his right to appeal. After holding hearings on July 10 and July 23, 2009, the trial court issued written findings. According to his testimony at the July 10 hearing, appellant's trial counsel prepared the plea papers in the credit card abuse cases shortly before meeting with appellant at the jail on July 8, 2008, several months after appellant had been convicted of burglary of a habitation. The plea agreements provided that appellant would receive sentences of one year in jail on each of the two pending credit card abuse cases and that those sentences would run concurrently with each other and with the sentence imposed in the above burglary case. The plea papers also specified that part of the plea agreements included appellant dismissing his appeal of the instant burglary conviction. Appellant signed the plea papers and asked trial counsel to strike the sentences concerning dismissal of the burglary appeal. Counsel marked through the provisions and told appellant that he would ask the State if they would agree to the alterations. Counsel later received an e-mail from one of the prosecutors stating that they would not agree to strike the appeal dismissal provisions. Trial counsel testified that he subsequently told appellant, in writing, that the State refused to accept the plea agreements unless appellant dismissed the burglary appeal. In a letter to appellant dated July 9, 2008, counsel stated, in part:As I expected, the prosecutor is not going to let you "have your cake and eat it, too" in these cases (see enclosed e-mail from prosecutor Smith, received in my office this afternoon). In other words, if you want to receive a year in the state jail on your two credit card abuse cases, running concurrently with each other and with your ten year sentence in the burglary case, the prosecutor is going to require you to abandon your appeal of the burglary case.On September 9, 2008, trial counsel received a telephone call from appellant advising him to accept the plea offers and indicating that he agreed to dismiss the burglary appeal. Counsel followed up this conversation with a September 10 letter confirming the telephone conversation. Shortly thereafter, counsel testified that he rewrote, by hand, the original appeal dismissal provisions on each plea agreement. Testifying at the July 23, 2009 hearing, appellant claimed that, at the time he signed the plea agreements for the credit card abuse cases, the typewritten appeal waivers had been "marked through or struck through," and he did not see or read the plea agreements again after he signed them. He alleged that he did not know the documents had been changed to indicate he was waiving his right to appeal the burglary conviction. Appellant also testified that he never would have signed the plea agreements had he known he was waiving his right to appeal the instant case. The trial court concluded that appellant's trial counsel was a "credible witness" and that his testimony was accepted as true. The court also concluded that a video recording of the September 17, 2008 plea hearing, which was admitted into evidence as State's exhibit three, showed appellant was properly admonished, that he did not ask any questions, and that he did not revoke his consent to the plea agreements. The trial court further concluded that appellant knowingly and intelligently waived his right to appeal the burglary conviction, that he agreed to dismiss the instant appeal, and that the appeal should be dismissed. The general rule is that defendants in noncapital cases may waive any rights secured them by law, including the right to appeal. Tex. Code Crim. Proc. Ann. art. 1.14(a) (Vernon 2006); Monreal v. State, 99 S.W.3d 615, 617 (Tex. Crim. App. 2003). The court of criminal appeals has noted that a defendant's statutory right under article 1.14(a) is judicially enforceable unless the waiver is not "knowingly and intelligently made." See Blanco v. State, 18 S.W.3d 218, 219 (Tex. Crim. App. 2000). When a defendant waives his right to appeal as part of an agreement on sentencing and the trial court follows the terms of that agreement, the waiver is knowingly, intelligently, and voluntarily made. See Ex parte Delaney, 207 S.W.3d 794, 798-99 (Tex. Crim. App. 2006); Blanco, 18 S.W.3d at 219-220. When a defendant knowingly, intelligently, and voluntarily waives appeal, he may not appeal unless the trial court grants permission. Monreal, 99 S.W.3d at 617. A trial court's certification of appeal pursuant to rule of appellate procedure 25.2 that a defendant is entitled to appeal must be supported by the record. See Dears v. State, 154 S.W.3d 610, 614-15 (Tex. Crim. App. 2005); Barcenas v. State, 137 S.W.3d 865, 866 (Tex. App.-Houston [1st Dist.] 2004, no pet.) (per curiam). In this case, the trial court certified that appellant could appeal because this was "not a plea-bargained case" and appellant "has the right to appeal." However, the record reflects that, several months after appellant was sentenced, he waived his right to appeal as part of two plea bargain agreements that resolved two pending credit card abuse cases. The record also shows that appellant was sentenced in accordance with those agreements. We conclude appellant's waiver of his right to appeal was knowingly, intelligently, and voluntarily made. See Delaney, 207 S.W.3d at 798; Blanco, 18 S.W.3d at 219. Furthermore, since the waiver was knowingly, intelligently, and voluntarily made, appellant could not appeal without the trial court's permission. Because no permission was given, we agree with the State that appellant is bound to his waiver and the appeal should be dismissed. See Barcenas v. State, 137 S.W.3d 865, 866 (Tex. App.-Houston [1st Dist.] 2004, no pet.) (when trial court's certification states there is right to appeal but record shows appellant has no such right, no need to obtain amended certification before dismissing the appeal). Accordingly, we dismiss the appeal.