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Willingham v. State

Court of Appeals Fifth District of Texas at Dallas
Jun 20, 2017
No. 05-16-01381-CR (Tex. App. Jun. 20, 2017)

Opinion

No. 05-16-01381-CR

06-20-2017

MICHAEL LEON WILLINGHAM, Appellant v. THE STATE OF TEXAS, Appellee


On Appeal from the 292nd Judicial District Court Dallas County, Texas
Trial Court Cause No. F15-20777-V

MEMORANDUM OPINION

Before Justices Fillmore, Whitehill, and Boatright
Opinion by Justice Whitehill

During the defense presentation of evidence in his jury trial for aggravated robbery, Michael Leon Willingham accepted a plea bargain offer from the State that required him to plead guilty and waive his right to appeal in exchange for the State's agreement to strike two enhancement paragraphs and the assessment of a ten-year sentence. The agreement was documented in a written plea bargain agreement that spelled out the terms including appellant's waiver of the right to appeal. The trial court orally reviewed the terms with appellant and received appellant's assurances that he understood that if the trial court followed the terms of the agreement, he would not be able to appeal. The trial court also filled out, and appellant signed, a certification showing the case involved a plea bargain and appellant had no right to appeal. The trial court instructed the jury to return an instructed verdict of guilty.

During the jury deliberations, the jury sent out a note asking the trial court: "Is there a choice of guilt or innocence? According to instructions we have to find guilty?" Appellant's counsel then asked the trial court if appellant could withdraw his guilty plea. The trial court denied the request, reasoning that it would be prejudicial to appellant at this point to withdraw the plea after the jury was aware of it. After a conference with trial counsel, appellant reaffirmed on the record that he wanted to proceed with the plea bargain. The jury returned a guilty verdict before the trial court could respond to the jury note. The trial court followed the plea agreement and assessed the agreed punishment.

Because the trial court's certification states appellant has no right to appeal and the clerk's record supports the certification, the Court directed the parties to file letter briefs addressing the Court's jurisdiction. In his letter brief, appellant conceded that the record showed he entered into a plea bargain and waived his right to appeal. Nevertheless, appellant contended the Court should not dismiss this case without acquiring and examining the reporter's record because of the unusual circumstances of appellant's plea agreement. Specifically, appellant raised three circumstances requiring further examination: (1) what rulings the trial court may have made on pretrial motions; (2) whether appellant accepted the plea bargain and changed his plea before or after the jury began deliberations; and (3) a determination of what response the trial court gave the jury to its note.

In their letter briefs, the parties also informed the Court that there is an issue regarding whether appellant filed a valid notice of appeal. Because we have determined on other grounds that we have no jurisdiction, we need not resolve the efficacy of appellant's notice of appeal.

The Court ordered the reporter's record filed. It revealed appellant entered his agreement with the State after the trial court made all of its pretrial rulings, after a jury was chosen, and after appellant was able to hear the State's entire presentation of the evidence and the most critical defense witness. The trial court did not respond to the jury's note. After the note was delivered, appellant consulted with counsel, and he determined to continue with the plea bargain agreement.

By entering into a plea bargain agreement and accepting an agreed sentence, appellant limited his right to appeal to those matters raised by written motion filed and ruled on before trial and matters the trial court gives permission to appeal. See TEX. R. APP. P. 25.2(a)(2). The record does not reflect the trial court has given permission to appeal. The record reflects only two contested pretrial motions in this case. First, the trial court denied appellant's request to order the State to turn over before the start of voir dire any extra information it had about the venire, including criminal histories of the potential jurors. The record does not disclose why the trial court denied appellant's request for potential juror information nor does it disclose whether the State, in fact, had any such information. Appellant offers no argument in his jurisdictional brief regarding why he would be entitled to the information. Secondly, the trial court granted provisionally paragraph two of the State's motion in limine seeking to restrict testimony about specific acts of misconduct by the victim or any State's witness. The restriction was aimed at potential testimony by the complaining witness's supervisor about instances of violations of store policies concerning the confrontation of shoplifters. During the trial, however, the trial court allowed the defense to question the supervisor, over the State's objection, about the only instance of misconduct the supervisor agreed had occurred. We conclude there is no basis in the trial court's pretrial rulings for an appeal. See id.; Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006).

More importantly, however, the record shows appellant waived his right to appeal as part of his plea bargain agreement. The waiver, given to secure the benefits of the plea bargain agreement and supported by valuable consideration from the State in the form of striking enhancement paragraphs and an agreed punishment, is enforceable against appellant. See Jones v. State, 488 S.W.3d 801, 807-08 (Tex. Crim. App. 2016); Ex parte Broadway, 301 S.W.3d 694, 699 (Tex. Crim. App. 2009).

For appellant to proceed with an appeal, the record must contain the trial court's certification showing he has a right to appeal. See TEX. R. APP. P. 25.2(d). In this case, the trial court's certification shows, correctly, that appellant has no right to appeal. Because the record supports the trial court's certification and further shows appellant waived the right to appeal, we are required to dismiss the appeal without further action. See TEX. R. APP. P. 25.2(d); Chavez, 183 S.W.3d at 680.

We dismiss the appeal for want of jurisdiction.

/Bill Whitehill/

BILL WHITEHILL

JUSTICE Do Not Publish
TEX. R. APP. P. 47
161381F.U05

JUDGMENT

On Appeal from the 292nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F15-20777-V.
Opinion delivered by Justice Whitehill. Justices Fillmore and Boatright participating.

Based on the Court's opinion of this date, the appeal is DISMISSED. Judgment entered June 20, 2017.


Summaries of

Willingham v. State

Court of Appeals Fifth District of Texas at Dallas
Jun 20, 2017
No. 05-16-01381-CR (Tex. App. Jun. 20, 2017)
Case details for

Willingham v. State

Case Details

Full title:MICHAEL LEON WILLINGHAM, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals Fifth District of Texas at Dallas

Date published: Jun 20, 2017

Citations

No. 05-16-01381-CR (Tex. App. Jun. 20, 2017)