From Casetext: Smarter Legal Research

Tickle v. State

Court of Appeals of Texas, Twelfth District, Tyler
Jul 31, 2024
No. 12-24-00127-CR (Tex. App. Jul. 31, 2024)

Opinion

12-24-00127-CR

07-31-2024

JERRY DEWAYNE TICKLE, APPELLANT v. THE STATE OF TEXAS, APPELLEE


APPEAL FROM THE 241ST JUDICIAL DISTRICT COURT SMITH COUNTY, TEXAS

ORDER

Jerry Dewayne Tickle pleaded "guilty" to possession of a controlled substance. In accordance with an agreed punishment recommendation, the trial court sentenced him to fourteen months in a state jail facility. Appellant filed a notice of appeal to "appeal pre-trial issues, trial, the conviction and sentence entered in the subject cause[.]"

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 June 27, 2024, 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 July 8, a supplemental clerk's record containing an amended trial court's certification of defendant's right of appeal, based on a pretrial motion, is filed with this Court. This Court received no response to the June 27 notice.

Our review of 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). Appellant filed a pretrial motion to suppress, which the trial court denied. When entering his plea agreement, Appellant and his counsel signed a written waiver of appeal. The certification of Appellant's right to appeal states:

I[] have received a copy of this certification. I have also been informed of my rights concerning any appeal of this criminal cause, 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 change 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). The document entitled "acknowledgment of admonishments," which Appellant and his counsel signed, contained the following provision:
If the punishment assessed does not exceed the punishment recommended by the Prosecutor and agreed to by the Defendant and his/her attorney, the Trial Court must give its permission to the Defendant before he/she may prosecute an appeal or any matter in this case, except for those matters raised by written motion filed prior to trial.
(emphasis added). At the conclusion of the plea hearing, defense counsel stated the following:
Judge, just one other thing. Also we know we had a motion to suppress on this issue and the Court denied our motion to suppress. At this time I would like to file a motion to withdraw and Mr. Tickle would like to file a notice of appeal.

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, 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 Debra E. Gunter 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 August 12, 2024.

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

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

GIVEN UNDER MY HAND AND SEAL OF SAID COURT, at my office this the 31st day of July 2024, A.D.


Summaries of

Tickle v. State

Court of Appeals of Texas, Twelfth District, Tyler
Jul 31, 2024
No. 12-24-00127-CR (Tex. App. Jul. 31, 2024)
Case details for

Tickle v. State

Case Details

Full title:JERRY DEWAYNE TICKLE, APPELLANT v. THE STATE OF TEXAS, APPELLEE

Court:Court of Appeals of Texas, Twelfth District, Tyler

Date published: Jul 31, 2024

Citations

No. 12-24-00127-CR (Tex. App. Jul. 31, 2024)