Opinion
01-20-00824-CR 01-20-00825-CR
01-25-2022
LA'ZARUS FAIRLEY, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 179th District Court Harris County, Texas Trial Court Case Nos. 1629414 & 1636076
Panel consists of Justices Hightower, Countiss, and Guerra.
MEMORANDUM OPINION
Amparo Guerra, Justice
After appellant, La'Zarus Fairley, without an agreed punishment recommendation from the State, pleaded guilty to two separate offenses of aggravated robbery, the trial court assessed his punishment at confinement for eight years for each offense, to run concurrently. On December 9, 2020, appellant filed notices of appeal.
See Tex. Penal Code Ann. § 29.03(a)(2); appellate cause no. 01-20-00824-CR, trial court cause no. 1629414; appellate cause no. 01-20-00825-CR, trial court cause no. 1636076.
We dismiss the appeals for lack of jurisdiction.
Background
A Harris County Grand Jury, in trial court cause number 1629414, issued a true bill of indictment, alleging that appellant, on or about April 25, 2019, "while in the course of committing theft of property owned by [complainant 1], and with intent to obtain and maintain control of the property, intentionally and knowingly threaten[ed] and place[d] [complainant 1] in fear of imminent bodily injury and death" and appellant "use[d] and exhibit[ed] a deadly weapon, namely, a firearm." In trial court cause number 1636076, a Harris County Grand Jury issued a true bill of indictment, alleging that appellant, on or about April 18, 2019, "while in the course of committing theft of property owned by [complainant 2], and with intent to obtain and maintain control of the property, intentionally and knowingly threaten[ed] and place[d] [complainant 2] in fear of imminent bodily injury and death" and appellant "use[d] and exhibit[ed] a deadly weapon, namely a firearm."
Subsequently, appellant signed and filed a "Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession" in each trial court cause number, in which he pleaded guilty to two separate offense of aggravated robbery and admitted that he committed the acts as alleged in the indictments. Appellant also waived his right to a jury trial in each trial court cause number. The "Waiver[s] of Constitutional Rights, Agreement[s] to Stipulate, and Judicial Confession[s]," also included the following waiver of appellant's rights of appeal:
I understand that I have not reached an agreement with the [State] as to punishment. However, in exchange for the State waiving [its] right to a jury trial, I intend to enter . . . plea[s] of guilty without . . . agreed recommendation[s] of punishment from the [State] and request that my punishment[s] should be set by the Judge after a pre-sentence investigation report and hearing. I understand the [S]tate reserves the right to argue for full punishment at my sentencing hearing. I waive any further time to prepare for trial to which I or my attorney may be entitled. Further, in exchange for the [S]tate giving up [its] right to trial, I agree to waive any right[s] of appeal which I may have.
Appellant's trial counsel also signed the "Waiver[s] of Constitutional Rights, Agreement[s] to Stipulate, and Judicial Confession[s]," affirming that he believed that appellant had entered his guilty pleas knowingly, voluntarily, and after a full discussion of the consequences of his pleas.
Appellant also signed written admonishments, informing him that he had been indicted for two separate offenses of aggravated robbery and of the punishment range for those offenses. Appellant further acknowledged that he understood that the trial court "must give its permission to [appellant] before [appellant] may prosecute . . . appeal[s] on any matter in th[ese] case[s] except for those matters raised by [appellant] by written motion filed prior to trial." And appellant signed a "Statement and Waivers of Defendant" in each trial court cause number, affirming that he was mentally competent; understood the nature of the charges against him, the trial court's admonishments, and the consequences of his pleas; and freely and voluntarily pleaded guilty. Moreover, appellant represented that he had consulted with his trial counsel about his pleas; he "waive[d] and g[a]ve up any time provide[d] [to him] by law to prepare for trial"; he was "totally satisfied with the representation provided by [his] counsel and [he had] received effective and competent representation"; he "g[a]ve up all rights given [to him] by law, whether of form, substance or procedure"; he "waive[d] and g[a]ve up [his] right to a jury in th[e] case[s] and [his] right to require the appearance, confrontation and cross[-]examination of the witnesses"; he "consent[ed] to [the] oral or written stipulations or evidence in th[e] case[s]"; and he had "read the indictment[s] and [he had] committed each and every element alleged." Appellant requested that the trial court accept his guilty pleas.
Finally, appellant signed, in each trial court cause number, a document titled "Advice of Defendant's Right of Appeal," explaining that because appellant "waived or gave up [the] right to appeal, [he] c[ould not] appeal [his] conviction[s]."
The trial court found sufficient evidence of appellant's guilt and that he had entered his guilty pleas freely, knowingly, and voluntarily. The trial court admonished appellant of his legal rights, accepted his guilty pleas, and ordered a pre-sentence investigation.
After a sentencing hearing, the trial court assessed appellant's punishment at confinement for eight years for each offense, to run concurrently. The trial court's judgment of conviction in each trial court cause number, states: "APPEAL WAIVED, NO PERMISSION TO APPEAL GRANTED." The trial court also signed certifications of appellant's right of appeal, stating that these were "plea-bargain case[s], and [appellant] ha[d] NO right[s] of appeal." These certifications are supported by the appellate record and signed by appellant and his trial counsel.
On December 9, 2020, appellant's court-appointed trial counsel filed a notice of appeal in each trial court cause number on appellant's behalf and sought to withdraw as appellant's counsel. The trial court granted trial counsel's motion to withdraw and appointed appellate counsel to represent appellant in each of his appeals.
Jurisdiction
As an initial matter, the State argues that appellant's "appeal[s] should be dismissed for lack of jurisdiction because appellant executed a valid waiver of his right of appeal" in each trial court cause number.
Criminal defendants have a statutory right to appeal their convictions. See Tex. Code Crim. Proc. Ann. art. 44.02; Carson v. State, 559 S.W.3d 489, 492 (Tex. Crim. App. 2018). However, in any non-capital case a defendant may waive his right of appeal. See Tex. Code Crim. Proc. Ann. art. 1.14(a); Carson, 559 S.W.3d at 492. Where a defendant executes a valid waiver of his right of appeal, he is barred from appealing any issue unless the trial court grants him permission to appeal. Carson, 559 S.W.3d at 493.
The Texas Court of Criminal Appeals has held that, as a part of a plea-bargain agreement, a criminal defendant may waive his right to appeal even where there is no agreement with the State as to a punishment recommendation. See id. at 494 ("[A] defendant may knowingly and intelligently waive his appeal as a part of a plea when consideration is given by the State, even when sentencing is not agreed upon."). For this waiver of the right of appeal to be valid, "the record must show that the State gave up its right to a jury in exchange for the defendant's waiver of his appeal." See id. A written waiver in which the defendant affirmatively states that he is giving up his right of appeal in exchange for the State's consent to waive its right to a jury trial satisfies this requirement. See Lopez. v. State, 595 S.W.3d 897, 900-01 (Tex. App.-Houston [14th Dist.] 2020, pet. ref'd). Here, the record in each trial court cause number includes such a written waiver signed by appellant and his trial counsel and appellant affirmatively stated that "in exchange for the [S]tate giving up [its] right to trial, [appellant] agree[d] to waive any right of appeal which [he] may have [had]." See Carson, 559 S.W.3d at 496 (holding "State's waiver of its right to a jury was sufficient consideration to render [a]ppellant's waiver of his right to appeal knowing and intelligent"); Lopez, 595 S.W.3d at 900-01 ("A waiver of appeal prior to sentencing may be valid if it is bargained for-that is, if the State gives some consideration for the waiver, even if a sentence is not agreed upon.").
Additionally, when a trial court enters a judgment of guilt, it must certify whether the defendant has a right of appeal. See Tex. R. App. P. 25.2(a)(2). Texas Rule of Appellate Procedure 25.2(a) states that in a case where a defendant voluntarily pleaded guilty, the defendant may only appeal "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)(A), (B). In this case, the trial court certified that appellant waived his right to appeal in each trial court cause number. Appellant signed both of the trial court's certifications. The trial court's judgments of conviction also state: "APPEAL WAIVED. NO PERMISSION TO APPEAL GRANTED."
Here, the record is clear that appellant waived his right of appeal in each trial court cause number and the trial court did not grant appellant permission to appeal. Thus, appellant may not appeal his two separate convictions for the offense of aggravated robbery.
Accordingly, we dismiss the appeals for lack of jurisdiction. See Tex. R. App. P. 43.2(f). We dismiss any other pending motions as moot.