Crystal Dawn White v. The State of Texas--Appeal from 8th District Court of Franklin County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00184-CR
______________________________
CRYSTAL DAWN WEBB WHITE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 8th Judicial District Court
Franklin County, Texas
Trial Court No. 7,599
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Ross
MEMORANDUM OPINION

Crystal Dawn Webb White appeals from the revocation of her community supervision. On December 12, 2003, she was found guilty of bail jumping and failure to appear and placed on community supervision for ten years. (1) On May 10, 2006, the State filed a motion to revoke. After an extremely short hearing at which White pled true to the allegations against her, the court revoked her community supervision and sentenced her to seven years' imprisonment. (2) The record reflects that there was an agreement with the State for seven years' imprisonment, a $1,000.00 fine, and a balance of court costs of $278.00. After asking White whether that was the agreement, and obtaining an affirmative response, the court sentenced her in accordance with the terms of the agreement. In all criminal appeals, the trial court is required to provide a certification of the defendant's right to appeal. Tex. R. App. P. 25.2(d). If a certification showing that the defendant has a right of appeal is not part of our record, we have no option but to dismiss the appeal. Id.

In this case, we have a certification stating that White had no right to appeal because there was a negotiated plea bargain which was followed by the court, and also had no right to appeal because she had waived that right. Unless the record before this Court shows that the certification is defective, we have no option but to dismiss the appeal. See Dears v. State, 154 S.W.3d 610 (Tex. Crim. App. 2005).

When a defendant is alleged to have violated the terms and conditions of community supervision and the State seeks to revoke, the defendant does not enter a new plea of guilty or nolo contendere--the defendant enters a plea of true or not true. Tex. Code Crim. Proc. Ann. art. 42.12, 5(b) (Vernon Supp. 2006). Accordingly, Rule 25.2(a)(2) does not apply so as to limit a defendant's ability to appeal from a subsequent plea of true to a revocation motion. Jackson v. State, 168 S.W.3d 239, 242 (Tex. App.--Fort Worth 2005, no pet.).

This conclusion is confirmed by the Texas Court of Criminal Appeals opinion in Dears. In that opinion, the court stated that the court of appeals misapplied Rule 25.2(a)(2), and held that: "The rule refers only to plea bargains with regard to guilty pleas, not pleas of true on revocation motions. Regardless of whether a court feels that a defendant should be 'bound' by an agreement on a plea of true, the plain language of Rule 25.2(a)(2) does not contemplate that situation." Dears, 154 S.W.3d at 613.

By the plain language of the rule, then, although a certification must be prepared because this is an appealable order, Rule 25.2(d) (which explicitly incorporates Rule 25.2(a)(2)), limits the scope of the right to appeal based (in relevant part) on whether a plea bargain is involved. As defined in that portion of the rule, and as set out by the cases cited above and their predecessors, a plea of "true" does not place a revocation proceeding inside the definition of a plea bargain. Thus, the court's act in checking the box in the certification stating that this case is a "plea-bargain case, and the defendant has NO right of appeal" is incorrect as a matter of law--this is not a plea bargain--and we must disregard that notation.

The certification also, however, contains a notation that "the defendant has waived the right of appeal." If that notation is not defective, then under Rule 25.2(d), we must dismiss the appeal. The Texas Court of Criminal Appeals has recently revisited the presentencing waiver scenario. In Ex parte Delaney, No. AP-75,291, 2006 Tex. Crim. App. LEXIS 2293 (Tex. Crim. App. Nov. 22, 2006), the court reiterated its concern about waivers signed by defendants who had no idea what sentence would ultimately be imposed. The court reiterated its holding in Blanco v. State, 18 S.W.3d 218, 219-20 (Tex. Crim. App. 2000), where it upheld a waiver executed after conviction but before sentencing in exchange for a recommended sentence--and had concluded there was no compelling reason why the appellant should not be held to his or her bargain.

The court went on to emphasize the importance that any waiver of the right to appeal must be intelligent and knowing, and that when a post-conviction but presentencing waiver was not bargained for in exchange for an agreed-upon sentence, concerns as to its validity are raised. Delaney, 2006 Tex. Crim. App. LEXIS 2293, at *5.

In this case, as in Delaney, the waiver appears to have been executed before sentencing. Unlike Delaney, however, in this case the record indicates that there was an agreement and a recommended sentence, which was followed by the court. This record shows the situation to be one where the punishment that would be imposed was not uncertain, and the waiver was entered into in connection with White's determination to plead true to the allegations that resulted in revocation of her community supervision.

We have a reporter's record of the hearing in which the trial court recognized that there was an agreement that White would be sentenced to seven years' incarceration in return for her plea of true and that she understood that was the agreement. The record also contains a formal waiver of the right to appeal, which was signed on the date of her sentencing. After sentencing her, the trial court, a second time, asked White if she had received the sentence she thought she would, and she indicated that she had.

Under most situations, we would be required to direct the district court to issue a corrected certification. See Dears, 154 S.W.3d at 614. In this case, however, this is not necessary. The court also noted that the defendant had waived the right of appeal. There is such a document in this record, signed by White, and dated on the day of the revocation hearing, in which she expressly waives her right to appeal the revocation of her community supervision in this case. As stated above, she had agreed to the sentence that the State was recommending, and the trial court followed that recommendation. Under these facts, it is thus not apparent that the waiver is invalid or that the certification is defective, and we have no option but to dismiss the appeal for want of jurisdiction.

We dismiss the appeal.

 

Donald R. Ross

Justice

 

Date Submitted: December 19, 2006

Date Decided: December 20, 2006

 

Do Not Publish

1. The underlying offense appears to have been a forgery charge, which, under Tex. Penal Code Ann. 32.21(d) (Vernon Supp. 2006), is a state-jail felony, and thus carries a much lesser range of punishment than does the offense of bail jumping--which (because the underlying offense is defined as a felony) is raised by definition to a third-degree felony by Tex. Penal Code Ann. 38.10 (Vernon 2003).

We note that the bail jumping statute has not been substantively altered since it was written in 1973--and that the category of state-jail felony did not then exist. State-jail felonies came into existence twenty years later, in 1993. We may speculate that the Legislature in 1973 meant nothing more than to match the minimum range of felony punishment available at the time--a third-degree felony--for failing to appear at a hearing on any level of felony charge. The result now is to allow punishment by ten years' incarceration for jumping bail on an underlying offense for which she could have only been sent to a state-jail facility for a maximum of two years.

2. Although two separate cases were involved at the hearing, only number 7599 is before this Court. The other case was the final adjudication of a deferred adjudication.