Opinion
05-24-00996-CR
11-04-2024
ANSELMO BENAVIDES, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 363rd Judicial District Court Dallas County, Texas Trial Court Cause No. F23-77063
ORDER
BONNIE LEE GOLDSTEIN, JUSTICE
Before the Court is the trial court's amended certification of defendant's right of appeal, signed and filed October 21, 2024. The State objects that the certification is inaccurate and argues that this Court lacks jurisdiction over the appeal.
Appellant was charged with continuous sexual abuse of a child. The range of punishment for this offense is imprisonment for twenty-five years to ninety-nine years or life. See Tex. Penal Code Ann. § 21.02(h). The record shows appellant pleaded guilty in exchange for the State's agreement to limit appellant's maximum punishment to fifty years' imprisonment. Such an agreement is a plea bargain subject to the jurisdictional restrictions of Rule of Appellate Procedure 25.2(a). See Talley v. State, 77 S.W.3d 904, 906 (Tex. App.-Dallas 2002, no pet.) ("An agreement to cap the punishment constitutes a plea bargain."); see also Llanas v. State, No. 03-22-00745-CR, 2024 WL 4377576, at *3 (Tex. App.-Austin Oct. 3, 2024, no pet. h.) ("Here, the plea documents include the notation 'OPEN PLEA w/ 40 YR CAP @ SENTENCING. 12.45 CAUSE NO. D1DC20300454.' The trial court acknowledged the existence of the cap when it received Llanas's plea and, following the punishment hearing, did not sentence him in excess of the State's recommendation. Thus, this is a plea-bargain case for purposes of Rule 25.2(a)(2)." (citations and footnote omitted)).
On the original certification of defendant's right of appeal, signed August 19, 2024, the trial judge, the Honorable Tracy Holmes, checked the first box on the certification form thereby stating:
I certify that this criminal case:
[] is not a plea-bargain case, and the defendant has the right of appeal. Tex.R.App.P. App'x D (form Certification of Defendant's Right of Appeal). At the hearing on August 19, 2024, where appellant pleaded guilty pursuant to the plea bargain, Judge Holmes discussed with appellant his right of appeal as follows:
The Court: Have you been over the Trial Court's Certification of your right to appeal?
The Defendant: Yes.
The Court: And you understand it?
The Defendant: Yes.
This dialogue, and the rest of the reporter's record for the plea hearing and the reporter's record of the punishment hearing, do not establish that Judge Holmes was aware that the case was a plea-bargain case and that appellant did not have a right of appeal unless she granted him permission to appeal, and they do not establish that she intended to grant permission to appeal if appellant did not otherwise have a right of appeal because of the plea bargain.
On October 10, 2024, this Court requested the parties to file jurisdictional briefs. We also sent Judge Holmes a letter explaining that the certification appeared inaccurate because the case appeared to involve a plea bargain, and we requested that she file an amended certification.
On October 21, 2024, Judge Holmes signed and filed an amended certification. This amended certification also checked the first box, certifying that the case was not a plea-bargain case. Judge Holmes hand-wrote on the certification form, "Δ has the right to appeal." Judge Holmes also made the following docket entry: "Δ admonished re right to appeal. Ct intends that this case is NOT a plea bargain and that Δ retains his right of appeal." The trial court's notation on the certification form and the docket entry do not establish that Judge Holmes intended to grant permission to appeal if appellant did not otherwise have a right of appeal because of the plea bargain.
On October 21, 2024, appellant's counsel filed a jurisdictional brief stating the trial court held an off-the-record hearing and "confirmed her intention for his case to be treated as an open plea" and stated "that she expressly intended for Appellant to retain a right of appeal."
On October 31, 2024, the State filed its jurisdictional letter brief objecting that the amended certification is inaccurate.
In this order, we agree with the State to the extent the State objects that the amended certification is inaccurate. As a matter of law, this is a plea-bargain case. See Talley, 77 S.W.3d at 906 ("An agreement to cap the punishment constitutes a plea bargain."). The first box on the certification form is inapplicable to this case. Therefore, the trial court's checking the first box of the certification form is inaccurate. The record does not disclose that any matters were raised by written motion and ruled on before trial, so the second box on the certification form is also inapplicable. Only the third, fourth, and fifth boxes are applicable:
I certify that this criminal case:
[] is a plea-bargain case, but the trial court has given permission to appeal, and the defendant has the right of appeal;
[] is a plea-bargain case, and the defendant has NO right of appeal;
[] the defendant has waived the right of appeal.Tex. R. App. P. App'x D (form Certification of Defendant's Right of Appeal).
Pursuant to Rule of Appellate Procedure 25.2(f), we STRIKE the original and amended Certifications of Defendant's Right of Appeal. We ORDER Judge Holmes to review the proceedings and prepare an amended Certification of Defendant's Right of Appeal that either (1) reflects this is a plea-bargain case and sets forth whether or not Judge Holmes grants permission for this appeal, or (2) concludes appellant waived the right of appeal. The amended Certification of Defendant's Right of Appeal shall be transmitted to this Court within TEN DAYS of the date of this order.
The Court will set the due date for appellant's brief after the Court determines its jurisdiction over this appeal.
We DIRECT the Clerk to send copies of this order to the Honorable Tracy Holmes, Presiding Judge, 363rd Judicial District Court; Felicia Pitre, Dallas County District Clerk; Christina O'Neil, Chief Judicial Staff Counsel for the Criminal District Courts, Dallas County; and counsel for all parties.