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Foraker v. State

COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS
May 28, 2021
CAUSE NO. 12-21-00013-CR (Tex. App. May. 28, 2021)

Opinion

12-21-00013-CR

05-28-2021

JEREMY LYNN FORAKER, APPELLANT v. THE STATE OF TEXAS, APPELLEE


APPEALED FROM 87TH DISTRICT COURT IN AND FOR ANDERSON COUNTY, TEXAS

ORDER

PER CURIAM

Jeremy Lynn Foraker pleaded "guilty" to assault by impeding breath or circulation against a family member, with a previous conviction. The trial court sentenced him to eight years in prison. Appellant filed a notice of appeal to challenge the denial of his pretrial motion to suppress.

The clerk's record has been filed. The trial court's certification of Appellant's right to appeal states that this is a plea bargain case and Appellant has no right of appeal. The certification is signed by Appellant and his counsel. See Tex.R.App.P. 25.2(d). On April 22, 2021, the Clerk of this Court notified Appellant that the clerk's record failed to show this Court's jurisdiction in that it includes the trial court's certification that this is a plea bargain case and Appellant has no right of appeal. Based on the certification, the notice stated that it appears the appeal should be dismissed. The notice warned that the appeal would be referred to the Court for dismissal unless, on or before May 3, Appellant informed the Court in writing of any grounds for continuing the appeal. Appellant filed a motion to extend the time for responding to the notice, which this Court granted to May 19. On May 19, the trial court signed a letter to this Court, which stated that after reviewing the file and information provided by Appellant's court appointed counsel, the trial court determined that Appellant was not entitled to an appeal. However, the record before us is not entirely clear as to whether the certification is correct. See Dears v. State, 154 S.W.3d 610 (Tex. Crim. App. 2005) (holding that court of appeals should review clerk's record to determine whether trial court's certification is accurate)

The plea agreement contained a punishment recommendation of eight years in prison. The document entitled "admonishments, voluntary statements, waivers, stipulation(s), judicial confession and plea agreement-felony" contained the following pertinent provisions:

…If the Court follows the plea agreement and assesses the agreed punishment the defendant cannot appeal the case without the Court's permission unless based on motions previously filed.
This is a plea bargain case and the defendant has NO right of appeal. []I have received a copy of this certification. I have also been informed of my rights concerning any appeal of this criminal case, including any right to file a pro se petition for discretionary review pursuant to Rule 68 of the Texas Rules of Appellate Procedure. I have been admonished that my attorney must mail a copy of the court of appeal's judgment and opinion to my last known address and that I have only 30 days in which to file a pro se petition for discretionary review in the court of appeals. TEX. R. APP. P. 68.2 I acknowledge that, if I wish to appeal this case and if I am entitled to do so, it is my duty to inform my appellate attorney, by written communication, of any change in the address at which I am currently living or any changes in my current prison unit. I understand that, because of appellate deadlines, if I fail to timely inform my appellate attorney of any change in my address, I may lose the opportunity to file a pro se petition for discretionary review.
(emphasis added). Appellant and his counsel signed this document. Attached to the document is an order accepting plea/certification, which states as follows:
…The Defendant was admonished that he had 10 days in which to file a Motion for New Trial or Motion in Arrest of Judgment; the Defendant waived such time and requested to be sentenced immediately, and sentence was imposed. The Defendant was then informed that he had 30 days in which to file a Motion of Appeal and if indigent, counsel could be appointed to appeal. The Defendant then in open Court waived his right to appeal in writing. Defendant was admonished pursuant to TRAP 25.2(a)(2). The Court approves the written waiver of jury trial, all waivers of rights, and the defendant's judicial confession.
(emphasis added). At the plea hearing, the trial court asked Appellant, "Do you understand that if you voluntarily waive your rights and plead guilty that you lose your right to appeal except under very limited circumstances?" Appellant acknowledged his understanding. The trial court also admonished Appellant that "if you voluntarily waive your rights [] you lose your right to appeal except under very limited circumstances," and Appellant again confirmed his understanding. The judgment states, "Appeal waived. No permission to appeal granted."

In a plea bargain case, i.e., 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: (A) those matters raised by written motion filed and ruled on before trial, (B) after getting the trial court's permission to appeal, or (C) where the specific appeal is expressly authorized by statute. Tex.R.App.P. 25.2(a)(2). Rule 25.2(a)(2)(A) grants defendants who plead guilty as part of a plea bargain the right to appeal pretrial motions. Marsh v. State, 444 S.W.3d 654, 660 (Tex. Crim. App. 2014). A defendant may waive this right, as long as the waiver is voluntarily, knowingly, and intelligently made. Id

Here, Appellant filed his motion to suppress on November 14, 2019, the trial court denied the motion on October 20, 2020, and Appellant pleaded "guilty" on January 14, 2021. The record does not contain an express waiver of the right to appeal pretrial motions, such as the denial of Appellant's motion to suppress, and suggests that Appellant may have retained his right to appeal under Rule 25.2(a)(2)(A). See id. at 656, 660 (appeal waived where waiver of appeal expressly waived right to appeal matters raised by written motion filed and ruled on before trial); see also Ex parte Peyton, No. WR-91, 328-01, 2020 WL 4810764, at *1 (Tex. Crim. App. Aug. 19, 2020) (per curiam order, not designated for publication) ("Even though he pleaded guilty pursuant to a plea agreement on punishment, Applicant had the right to appeal the denial of his pretrial motions after he was sentenced unless he expressly waived this right").

Accordingly, It is ORDERED that this case is remanded to the Honorable Deborah Oakes Evans to (1) issue a new certification, or (2) if Appellant is not entitled to appeal, issue findings of fact and conclusions of law explaining how Appellant waived his right to appeal the denial of his pretrial motion to suppress. Such certification or findings and conclusions must be filed with the district clerk on or before June 11, 2021.

This Court may require a trial court to certify whether there is a right to appeal, but we may not dictate the contents of the certification. See Greenwell v. Court of Appeals for Thirteenth Judicial Dist., 159 S.W.3d 645, 650 n.24 (Tex. Crim. App. 2005) (orig. proceeding).

It is FURTHER ORDERED that a supplemental clerk's record including either a new certification or the trial court's findings and conclusions be certified to this Court on or before June 18, 2021

WITNESS the Honorable James T. Worthen, Chief Justice of the Court of Appeals, 12thCourt of Appeals District of Texas, at Tyler.

GIVEN UNDER MY HAND AND SEAL OF SAID COURT, at my office this the 28th day of May 2021, A.D.


Summaries of

Foraker v. State

COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS
May 28, 2021
CAUSE NO. 12-21-00013-CR (Tex. App. May. 28, 2021)
Case details for

Foraker v. State

Case Details

Full title:JEREMY LYNN FORAKER, APPELLANT v. THE STATE OF TEXAS, APPELLEE

Court:COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS

Date published: May 28, 2021

Citations

CAUSE NO. 12-21-00013-CR (Tex. App. May. 28, 2021)