Summary
declining to order the trial court to amend a defective certification "because doing so would be a useless act—Brooks would still be unable to appeal his conviction"
Summary of this case from Denson v. StateOpinion
NO. 02-12-00196-CR
06-07-2012
WILLIAM EDWARD BROOKS APPELLANT v. THE STATE OF TEXAS STATE
FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Appellant William Edward Brooks attempts to appeal his conviction for possession of more than 50 but less than 2,000 pounds of marijuana. The trial court initially filed a certification of Brooks's right to appeal stating that this "is a plea-bargain case, and the defendant has NO right of appeal." On May 8, 2012, we notified Brooks of the certification and explained that the appeal was subject to dismissal unless he or any party desiring to continue the appeal filed a response with the court showing grounds for continuing the appeal. Brooks filed a response that stated in relevant part as follows:
Despite the Trial Court Certification to the contrary this was not a plea bargain case for the following reasons. Prior to trial in this matter an agreement was reached between the Appellant and the State that in exchange for his plea of Guilty and waiver of trial by jury as to guilt-innocence, the State would waive one of the felony conviction allegations dropping the punishment range from that for a habitual offender to that of a second degree felony enhanced to a first degree felony. The District Judge approved the agreement. After waiving a jury trial on the issue of guilt alone, the Appellant pled Guilty to the District Judge based on the pre-trial agreement reached as to the charge to be tried and True to the felony conviction alleged to make the punishment trial a first degree felony range upon both oral and written plea admonishments. However, no plea agreement was made as to the actual punishment to be assessed. Punishment was later assessed in this case by the jury. Therefore, the Appellant should be permitted to pursue his appeal from the determinations made by the jury . . . .Although we did not order the trial court to amend the certification, on May 18, 2012, the trial court signed a first amended certification of Brooks's right to appeal stating that this "is not a plea-bargain case, and the defendant has the right of appeal." As explained below, the trial court's first amended certification is incorrect, and although the record supports Brooks's recitation of the procedural history of the case, the court of criminal appeals disagrees with his underlying argument.
The first amended certification does not contain Brooks's signature. See Tex. R. App. P. 25.2(d). We waited for the trial court to provide us with a copy of the amended certification that contains Brooks's signature, but the trial court was unable to locate Brooks, who is apparently incarcerated in federal prison somewhere.
In Shankle v. State, the court of criminal appeals described two forms of plea bargaining: (1) charge-bargaining, in which the State agrees to dismiss or refrain from bringing additional charges in exchange for a guilty or no-contest plea, and (2) sentence-bargaining, in which the State agrees to a sentencing "cap." 119 S.W.3d 808, 813 (Tex. Crim. App. 2003). Both forms of plea-bargaining affect punishment and constitute negotiated agreements.Id. at 813-14. Rule 25.2(a)(2) provides that in a plea-bargain case—"that is, a case in which a defendant's plea was guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant"—a defendant may appeal only those matters that were raised by written motion filed and ruled on before trial or after getting the trial court's permission to appeal. Tex. R. App. P. 25.2(a)(2). The court of criminal appeals held that if the State agrees to dismiss a charge in exchange for a guilty or no-contest plea and the trial court sentences the defendant within the statutory range for the remaining charge, this agreement is a plea bargain in which "the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant." Shankle, 119 S.W.3d at 812-14 n.10. Under these circumstances, the defendant can only appeal matters raised by written motion and ruled on before trial or matters on which the trial court gave permission to appeal, as provided by rule 25.2(a)(2). See id. at 814.
For example, regarding charge-bargaining, an agreement to dismiss a pending charge effectively puts a cap on punishment at the maximum sentence for the charge not dismissed. Shankle, 119 S.W.3d at 813.
In this case, Brooks and the State entered into a charge-bargain in which Brooks agreed to plead guilty to possession of between 50 and 2,000 pounds of marijuana and to plead true to one felony enhancement paragraph in exchange for the State's agreement to waive a different felony enhancement paragraph, thus reducing the minimum term of confinement for which the jury could assess his punishment from twenty-five years to five years. See Tex. Penal Code Ann. § 12.32 (West 2011), § 12.42(b), (d) (West Supp. 2011). The punishment assessed by the jury did not exceed the punishment recommended by the State and agreed to by Brooks, nor does Brooks argue that he seeks to appeal one of the matters identified by rule 25.2(a)(2). Accordingly, we lack jurisdiction over this appeal involving a plea bargain. See Tex. R. App. P. 25.2(a)(2); Shankle, 119 S.W.3d at 814.
The trial court's original certification of Brooks's right to appeal was correct; the first amended certification is incorrect. We decline to order the trial court to amend the first amended certification to reflect that this is a plea-bargain case and that Brooks has no right of appeal because doing so would be a useless act—Brooks would still be unable to appeal his conviction.See Dears v. State, 154 S.W.3d 610, 614-15 (Tex. Crim. App. 2005) (reasoning that appellate court has ability to examine certification for defectiveness and use rules 37.1 and 34.5(c) to obtain another certification, "whenever appropriate"); Pena v. State, 323 S.W.3d 522, 525-27 (Tex. App.—Corpus Christi 2010, no pet.) (concluding in charge-bargain case that appellate court did "not need to order the trial court to correct the certification because the record affirmatively demonstrate[d] that Pena d[id] not have the right to appeal"). We dismiss this appeal for lack of jurisdiction. See Tex. R. App. P. 43.2(f).
For the same reason, Brooks's signature on the first amended certification is unnecessary.
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PER CURIAM
PANEL: MEIER, J.; LIVINGSTON, C.J.; and GABRIEL, J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)