Opinion
NO. 02-17-00231-CR
08-30-2018
SERGIO ANGEL APPELLANT v. THE STATE OF TEXAS STATE
FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1446660D MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
A grand jury indicted Sergio Angel with three counts of aggravated assault with a deadly weapon, three counts of felony deadly conduct, and one count of unlawful possession of a firearm by a felon. See Tex. Penal Code Ann. §§ 22.02(a)(2), (b), 22.05(b)(2), (e), 46.04(a), (e) (West 2011). The indictment also included a deadly-weapon-finding notice and a repeat-offender notice alleging that Angel had previously been convicted of aggravated assault with a deadly weapon in January 2012.
Angel pleaded guilty to one count of aggravated assault with a deadly weapon. His plea paperwork states that he entered an open guilty plea but that the State waived counts two through seven and the repeat-offender notice alleged in the indictment. Consistent with the plea paperwork, the trial court's judgment, under the heading "Terms of Plea Bargain," states, "OPEN PLEA TO COURT - WAIVE REPEAT; WAIVE COUNTS TWO THROUGH SEVEN." The "Trial Court's Certification of Defendant's Right of Appeal" provides that Angel's case "is not a plea-bargain case and the defendant has the right to appeal." The trial court also wrote "OPEN PLEA" on the certification.
On June 28, 2018, we abated this appeal. In our abatement order, we stated that we had reviewed the record and that we were concerned about whether the appeal required dismissal because Angel had entered into a plea bargain. See Tex. R. App. P. 25.2(a)(2), (d); Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006); Shankle v. State, 119 S.W.3d 808, 813-14 (Tex. Crim. App. 2003). We explained that the State's agreement to waive the additional counts and the repeat-offender enhancement in exchange for Angel's guilty plea to one count of aggravated assault with a deadly weapon is a charge bargain, which qualifies as a plea bargain subject to rule of appellate procedure 25.2(a)(2). See Tex. R. App. P. 25.2(a)(2), (d); Shankle, 119 S.W.3d at 813-14; see also Kennedy v. State, 297 S.W.3d 338, 342 (Tex. Crim. App. 2009). The trial court's certification of Angel's right to appeal was thus incorrect. See Kennedy, 297 S.W.3d at 342 (concluding that a defendant had entered into a plea-bargain agreement subject to rule 25.2(a)(2) even though his paperwork stated that he had entered an open guilty plea). We therefore instructed the trial court to amend its certification of Angel's right to appeal to comport with the record. See Tex. R. App. P. 25.2(a)(2), (d), (f), 34.5(c)(2).
On June 29, 2018, the trial court signed an amended certification stating that this is a plea-bargain case and that Angel has "NO right of appeal." An appeal "must be dismissed if a certification that shows the defendant has the right of appeal has not been made part of the record." Tex. R. App. P. 25.2(d). Under appellate-procedure rule 25.2, we must "dismiss a prohibited appeal without further action, regardless of the basis for the appeal." Chavez, 183 S.W.3d at 680.
The amended certification is signed by Angel's trial counsel. Angel did not sign and return the amended certification despite the trial-court clerk's having sent him a copy by certified mail and requesting that he sign and return it in an enclosed postage-paid envelope.
Because the trial court has certified that Angel has no right of appeal, we dismiss this appeal. See Tex. R. App. P. 25.2(a)(2), (d), 43.2(f); Chavez, 183 S.W.3d at 680; Moore v. State, No. 02-17-00216-CV, 2017 WL 6759035, at *1 (Tex. App.—Fort Worth Dec. 28, 2017, no pet.) (mem. op., not designated for publication).
/s/ Elizabeth Kerr
ELIZABETH KERR
JUSTICE PANEL: GABRIEL, KERR, and PITTMAN, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: August 30, 2018