Opinion
No. 10-03-00128-CR
Dissenting opinion delivered and filed December 8, 2004.
Appeal from the 410th District Court, Montgomery County, Texas, Trial Court # 02-08-05359 Cr.
DISSENTING OPINION
We have dealt with the procedural posture of this appeal before. Martinez v. State, No. 10-03-00128-CR, 2004 Tex. App. LEXIS 2687 (Tex.App. Mar. 24, 2004, order), reconsideration granted by, opinion withdrawn by, Martinez v. State, 2004 Tex. App. LEXIS 4469 (Tex.App. Waco, Apr. 22, 2004, order). Now we turn our attention to the merits. But should we?
This is yet another case in which I would like to know under what circumstances we are going to use one line of precedent or the other. I have called this problem to the Court's attention before but the majority refused to address it. See Warrick v. State, 143 S.W.3d 350, 351-353 (Tex.App. 2004, no pet) (Gray, C.J., dissenting). I believe we have the obligation to clarify our own authority in this regard.
Upon examination of the record in this case, it reveals something that our previous analysis had not. This is a plea bargain case. "Appellant pleaded guilty to the . . . indictment. . . . The only agreement as to punishment was that Appellant would not be sentenced to more than fifteen years." (Appellant's brief at pg 7). A plea in return for a cap on punishment is a plea bargain case. Shankle v. State, 119 S.W.3d 808, 813 (Tex.Crim.App. 2003).
The trial court's certification erroneously states "That the defendant's appeal is not in a plea-bargain case, and the defendant has the right of appeal as to punishment phase only." The issues raised by Martinez are not punishment phase issues. The issues address guilt for the offense charged and the reason for making the plea. These issues are raised by Martinez in his response to the Anders brief filed by his counsel.
So in this case we have a certification of a right to appeal that is not supported by an examination of the record. Should we proceed to examine the merits of the appeal or should we abate the case for preparation of a certification that properly reflects the events that occurred at trial? This Court has done both and I have been unable to discern when we apply which line of authority.
In Harris v. State, we held that if the certification does not reflect the events as they occurred at trial, we should abate the appeal for the filing of a corrected certification. Harris v. State, 137 S.W.3d 829, 831 (Tex.App. 2004, order). This holding in Harris overruled our own authority to the contrary and thus rejected the same holding from at least four other courts of appeals. See Walker v. State, 110 S.W.3d 509, 510 (Tex.App. 2003, no pet.); see also Stowe v. State, 124 S.W.3d 228, 232-33 (Tex.App. 2003, op. on mot.) (citing Aguilar v. State, No. 14-03-00346-CR, 2003 Tex. App. LEXIS 3507 (Tex.App. Apr. 24, 2003, no pet.) (mem. op.)); Hynson v. State, No. 05-03-00085-CR, 2003 Tex. App. LEXIS 3753 (Tex.App. May 1, 2003, no pet.) (not designated for publication) (mem. op.); Harris v. State, No. 01-03-00114-CR, 2003 Tex. App. LEXIS 3146 (Tex.App.-Houston [1st Dist.] Apr. 10, 2003, no pet.) (not designated for publication) (mem. op.); Smith v. State, No. 11-03-00067-CR, 2003 Tex. App. LEXIS 2432 (Tex.App. Mar. 20, 2003, no pet.) (not designated for publication).
But in Warrick, we started a different line of authority. Warrick v. State, 143 S.W.3d 350 (Tex.App. 2004, no pet). The Court in Warrick refused to follow Harris and have the certification corrected when it stated the defendant has the right to appeal because it was not a plea bargain case but the record clearly established that it was a plea bargain case.
Now it could be that Harris only applies if the certification indicates no right to appeal when the record indicates there is a right to appeal. Or it could be that Harris applies to all situations, unless an Anders brief is filed. But how do I know? How do you know? The Court has refused to reconcile its holdings, so I can provide no additional guidance other than to point out the problem.
If there is any question where I stand, it is that we made the wrong turn when we rejected our own precedent and the reasoning of other courts of appeals in deciding Harris. I would resolve this conflict by holding that Harris was improperly decided and that we will take the certification at face value and leave it to the litigants to use the other available means to correct the certification if it is wrong.
And as a final observation, there is a real question of whether we should even address the issues raised by Martinez in his response. Neither issue actually is addressed to the result of the punishment phase, and the certification expressly states a right to appeal as to the punishment phase only.
Unless and until the certification is otherwise properly corrected, I would take it at face value and address only those issues that relate to punishment. As there are no issues that relate to punishment, I would, therefore, dismiss the appeal. Because the Court addresses issues beyond the scope of the right to appeal in the certification, I respectfully dissent.