Opinion
14-22-00207-CR
05-17-2022
EDWARD LEON WALKER, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish - Tex.R.App.P. 47.2(b)
On Appeal from the 180th District Court Harris County, Texas Trial Court Cause No. 1570710
Panel consists of Chief Justice Christopher and Justices Wise and Jewell.
MEMORANDUM OPINION
PER CURIAM
Appellant entered a guilty plea to employing, authorizing, and inducing a child to engage in sexual performance and sexual conduct. See Tex. Pen. Code Ann. § 43.25(b). The trial court accepted the guilty plea and assessed punishment at imprisonment for 18 years in the Institutional Division of the Texas Department of Criminal Justice. We dismiss the appeal.
The trial court entered a certification of the defendant's right to appeal in which the court certified that appellant waived his right of appeal. See Tex. R. App. P. 25.2(a)(2). The trial court's certification is included in the record on appeal. See Tex. R. App. P. 25.2(d). On March 30, 2022, this court notified the parties that the appeal would be dismissed for lack of jurisdiction unless a party demonstrated that the court has jurisdiction. In response, appellant filed a motion requesting that we abate the appeal and order the trial court to certify appellant's right to appeal. In his motion, appellant argues that his waiver of appeal was invalid because his plea bargain with the State did not include a "cap" on punishment. The State responds that the plea agreement was supported by consideration because the State waived its right to a jury trial, thereby, allowing the trial court to grant appellant deferred adjudication community supervision. See Tex. Code Crim. Proc. art. 42A.101 (providing that a judge may, after receiving a plea of guilty, place the defendant on deferred adjudication supervision). Pursuant to article 42A.056, a jury could not have recommended community supervision because of the offense with which appellant was charged. See Id. at art. 42A.056(6).
Therefore, in ceding its right to a jury trial the State provided appellant consideration in way of his eligibility for deferred adjudication community supervision that appellant would not have had, but for, the State's waiver. Appellant could not have unilaterally waived the right to a jury, the court and the State also had to consent to the waiver. Id. at art. 1.13. Similar to the seminal case of Ex parte Broadway, where the Court of Criminal Appeals addressed this precise issue, appellant's waiver was the result of a bargained for exchange. 301 S.W.3d 694, 697-98 (Tex. Crim. App. 2009). Appellant's motion to abate is DENIED.
Accordingly, we dismiss the appeal.