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Bickley v. State

Court of Appeals Fifth District of Texas at Dallas
Feb 14, 2018
No. 05-17-01189-CR (Tex. App. Feb. 14, 2018)

Opinion

No. 05-17-01189-CR No. 05-17-01190-CR

02-14-2018

MICHAEL DEAN BICKLEY, Appellant v. THE STATE OF TEXAS, Appellee


On Appeal from the 283rd Judicial District Court Dallas County, Texas
Trial Court Cause Nos. F15-35146-T , F15-35147-T

ORDER

Before the Court is appellant's January 30, 2018 motion to determine jurisdiction and the State's February 9, 2018 letter brief in response. Appellant contends the record does not show the existence of a negotiated plea agreement between appellant and the State, but rather appellant's "arguable acquiescence" to the trial court's belief that there was such an agreement, and that appellant was therefore waiving his right to appeal. Appellant moves the Court to either find it has jurisdiction and obtain new certifications from the trial court or else to abate these cases and remand them to the trial court for findings of fact regarding whether appellant has the right to appeal. The State contends appellant negotiated an agreement with the State to enter guilty pleas in exchange for the State dropping an enhancement paragraph thus capping appellant's potential punishment.

The record shows the State dropped one of two enhancement paragraphs, but it does not reveal why the State chose not to proceed on the enhancement. Appellant's plea paperwork shows only that appellant entered open guilty pleas and there was no recommended punishment. During the plea hearing, the trial court indicated appellant would lose his right to appeal if the State dropped the enhancement paragraph. Trial counsel then asked the trial court if appellant could still enter open pleas. The trial court responded, "He's going to be stuck with it." Trial counsel then replied, "[y]es, sir. Oh, I understand. Yes, sir." After a short conference with appellant, trial counsel stated, "[m]y client does understand what you are saying and he is in agreement." In contrast to the plea paperwork, and in accordance with the discussion during the plea hearing, the trial court's judgments reflect the trial court's understanding that the State dropped the enhancement paragraph as part of a plea bargain agreement with appellant. The clerk's record in cause no. 05-17-01190-CR contains a certification—without a cause number—certifying appellant entered a plea bargain agreement and he has no right to appeal. There is no certification of the right to appeal in the record for cause no. 05-17-01189-CR.

Because there is no clear and unequivocal evidence in the record showing the State dropped the enhancement paragraph as part of a negotiated plea agreement with appellant, we GRANT appellant's motion to the extent we ORDER the trial court to make findings of fact regarding whether appellant entered his guilty pleas as part of a negotiated plea bargain agreement under which appellant agreed to plead guilty in exchange for the State's agreement to drop an enhancement paragraph.

We further ORDER the trial court to prepare certifications of the right to appeal reflecting its findings.

We ORDER the trial court to file, within THIRTY DAYS of the date of this order, supplemental clerk's records containing its findings of fact, any related documentation, and its certifications of the right to appeal in these cases.

We ABATE these appeals to allow the trial court to comply with this order. The appeals shall be reinstated THIRTY DAYS from the date of this order or when the supplemental clerk's records are received, whichever is earlier. The Court will determine whether it has jurisdiction over the appeals after reinstatement.

/s/ CRAIG STODDART

JUSTICE


Summaries of

Bickley v. State

Court of Appeals Fifth District of Texas at Dallas
Feb 14, 2018
No. 05-17-01189-CR (Tex. App. Feb. 14, 2018)
Case details for

Bickley v. State

Case Details

Full title:MICHAEL DEAN BICKLEY, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals Fifth District of Texas at Dallas

Date published: Feb 14, 2018

Citations

No. 05-17-01189-CR (Tex. App. Feb. 14, 2018)