Dismissed and Opinion Filed May 2, 2024
In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-01203-CR
BILLY ROY HIGH, JR., Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 4 Collin County, Texas Trial Court Cause No. 004-83825-2020
MEMORANDUM OPINION Before Justices Smith, Miskel, and Breedlove Opinion by Justice Breedlove Appellant appeals his conviction for driving while intoxicated. Appellant
pleaded nolo contendere, and pursuant to a plea bargain, the trial court deferred
adjudication of appellant’s guilt, placed him on community supervision for twelve
months, and imposed a fine of $200. One of the terms of the plea bargain was that
appellant “waives right to appeal.” We conclude we lack jurisdiction over this
appeal because it is an appeal from a plea bargain, the trial court did not grant
permission to appeal, the record contains no pretrial motions ruled on before trial, and no statute authorizes appeal of this case. Also, appellant waived the right to
appeal. Accordingly, we dismiss this appeal for want of jurisdiction.
A defendant in a criminal case has the right of appeal as set out in the Code
of Criminal Procedure and the Rules of Appellate Procedure. See TEX. CODE CRIM.
PROC. ANN. art. 44.02; TEX. R. APP. P. 25.2(a) Rule of Appellate Procedure 25.2
provides that in “a plea-bargain case—that is, a case 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 “those matters that were raised by written motion filed and ruled on
before trial,” “after getting the trial court’s permission to appeal,” or “where the
specific appeal is expressly authorized by statute.” TEX. R. APP. P. 25.2(a)(2). When
an appeal from a plea bargain is not authorized by Rule 25.2, “[a] court of appeals,
while having jurisdiction to ascertain whether an appellant who plea-bargained is
permitted to appeal by Rule 25.2(a)(2), must dismiss a prohibited appeal without
further action, regardless of the basis for the appeal.” Chavez v. State, 183 S.W.3d
675, 680 (Tex. Crim. App. 2006).
When an appellant waives his right to appeal as part of his plea bargain
agreement with the State, a subsequent notice of appeal filed by him fails to “initiate
the appellate process,” Lundgren v. State, 434 S.W.3d 594, 599 (Tex. Crim. App.
2014), and “no inquiry into even possibly meritorious claims may be made,” Chavez,
183 S.W.3d at 680.
–2– In this case, appellant was charged by information (filed July 10, 2020) with
driving while intoxicated on October 21, 2019. On November 10, 2023, appellant
signed a waiver of his rights to jury trial, confrontation, and presentation of
witnesses. He also waived his rights to ten days to prepare for trial and ten days’
notice of any hearing.
The plea agreement, styled “Sentence Recommendation,” states appellant
agreed to plead “no contest” and the State would recommend deferred adjudication
for 12 months, a $200 fine plus court costs, and certain specific conditions of
community supervision. The agreement also provided appellant would receive 87
days jail-time credit. The agreement also stated that appellant “waives right to
appeal and the right to file a motion for new trial.” The agreement provided that the
State approved and consented to appellant’s waiver of a trial by jury and that the
State waived its right to trial by jury. The “Sentence Recommendation” was signed
by appellant, his attorney, and the assistant criminal district attorney.
During the plea hearing, the trial court asked appellant if he was asking the
trial court to follow the plea agreement, and appellant said, “Yes, Your Honor.” The
trial court told appellant, “In a moment, I’m going to ask you to plead guilty or not
guilty. You can plead no contest if you wish. If you plead guilty or no contest, there
will be no appeal of your plea.” Appellant stated that he understood. The trial court
then asked appellant, “As to the driving while intoxicated, how do you plead?”
–3– Appellant answered, “No contest, Your Honor.” The trial court stated the agreement
would be followed, and the court deferred adjudication of appellant’s guilt and
ordered community supervision in accordance with the agreement. The trial court’s
certification of defendant’s right of appeal states, “I certify that this criminal case:
Is a plea-bargain case, and the defendant has NO right of appeal; the defendant has
waived the right of appeal.”
The record in this case shows appellant pleaded nolo contendere1 and the
punishment did not exceed the punishment recommended by the prosecutor and
agreed to by the defendant. The clerk’s record does not contain any motion ruled on
before trial; the certification of appellant’s right of appeal shows the trial court did
not grant appellant permission to appeal; and no statute expressly authorizes this
specific appeal. Therefore, under Rule 25.2(a), appellant has no right of appeal. See
Chavez, 183 S.W.3d at 680.
Rule 25.2(d) requires the court of appeals to dismiss the appeal if there is no
certification from the trial court showing the defendant has the right of appeal. TEX.
R. APP. P. 25.2(d). The certification affirmatively shows appellant did not have the
right to appeal, and the certification is supported by the record. Therefore, we must
1 A plea of “no contest” is a plea of “nolo contendere,” and the terms are used interchangeably. See, e.g., Jones v. State, 05-20-00476-CR, 2022 WL 17750551, at *3 (Tex. App.—Dallas Dec. 19, 2022, pet. ref’d) (mem. op; not designated for publication). –4– dismiss the appeal. Id.; see Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App.
2005).
We requested the parties to file briefs addressing the jurisdictional issue, and
appellant filed a brief.
Appellant asserts his appeal is authorized by articles 42A.110(a) and
42A.755(e) of the Texas Code of Criminal Procedure. Article 42A.110 is titled,
“Proceedings After Adjudication” and provides, “After an adjudication of guilt, all
proceedings including . . . defendant’s appeal, continue as if the adjudication of guilt
had not been deferred.” TEX. CODE CRIM. PROC. ANN. art. 42A.110(a). This statute
does not apply in this appeal because the record does not show appellant’s guilt has
been adjudicated.
Article 42A.755(e) provides, “The right of the defendant to appeal for a
review of the conviction and punishment, as provided by law, shall be accorded the
defendant at the time the defendant is placed on community supervision.” Id. art.
42A.755(e). “The law,” specifically article 44.02 of the Texas Code of Criminal
Procedure and Rule of Appellate Procedure 25.2(a)(2), however, provides that a
defendant who pleads guilty or nolo contendere in a plea-bargain case may appeal
only in certain situations, none of which exist in this case. Appellant has not shown
that this “specific appeal is expressly authorized by statute.” TEX. R. APP. P.
25.2(a)(2)(C).
–5– Appellant states he “is ‘unsure’ if he received a punishment that exceeded the
punishment recommended by” the State. The record shows the punishment received
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Dismissed and Opinion Filed May 2, 2024
In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-01203-CR
BILLY ROY HIGH, JR., Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 4 Collin County, Texas Trial Court Cause No. 004-83825-2020
MEMORANDUM OPINION Before Justices Smith, Miskel, and Breedlove Opinion by Justice Breedlove Appellant appeals his conviction for driving while intoxicated. Appellant
pleaded nolo contendere, and pursuant to a plea bargain, the trial court deferred
adjudication of appellant’s guilt, placed him on community supervision for twelve
months, and imposed a fine of $200. One of the terms of the plea bargain was that
appellant “waives right to appeal.” We conclude we lack jurisdiction over this
appeal because it is an appeal from a plea bargain, the trial court did not grant
permission to appeal, the record contains no pretrial motions ruled on before trial, and no statute authorizes appeal of this case. Also, appellant waived the right to
appeal. Accordingly, we dismiss this appeal for want of jurisdiction.
A defendant in a criminal case has the right of appeal as set out in the Code
of Criminal Procedure and the Rules of Appellate Procedure. See TEX. CODE CRIM.
PROC. ANN. art. 44.02; TEX. R. APP. P. 25.2(a) Rule of Appellate Procedure 25.2
provides that in “a plea-bargain case—that is, a case 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 “those matters that were raised by written motion filed and ruled on
before trial,” “after getting the trial court’s permission to appeal,” or “where the
specific appeal is expressly authorized by statute.” TEX. R. APP. P. 25.2(a)(2). When
an appeal from a plea bargain is not authorized by Rule 25.2, “[a] court of appeals,
while having jurisdiction to ascertain whether an appellant who plea-bargained is
permitted to appeal by Rule 25.2(a)(2), must dismiss a prohibited appeal without
further action, regardless of the basis for the appeal.” Chavez v. State, 183 S.W.3d
675, 680 (Tex. Crim. App. 2006).
When an appellant waives his right to appeal as part of his plea bargain
agreement with the State, a subsequent notice of appeal filed by him fails to “initiate
the appellate process,” Lundgren v. State, 434 S.W.3d 594, 599 (Tex. Crim. App.
2014), and “no inquiry into even possibly meritorious claims may be made,” Chavez,
183 S.W.3d at 680.
–2– In this case, appellant was charged by information (filed July 10, 2020) with
driving while intoxicated on October 21, 2019. On November 10, 2023, appellant
signed a waiver of his rights to jury trial, confrontation, and presentation of
witnesses. He also waived his rights to ten days to prepare for trial and ten days’
notice of any hearing.
The plea agreement, styled “Sentence Recommendation,” states appellant
agreed to plead “no contest” and the State would recommend deferred adjudication
for 12 months, a $200 fine plus court costs, and certain specific conditions of
community supervision. The agreement also provided appellant would receive 87
days jail-time credit. The agreement also stated that appellant “waives right to
appeal and the right to file a motion for new trial.” The agreement provided that the
State approved and consented to appellant’s waiver of a trial by jury and that the
State waived its right to trial by jury. The “Sentence Recommendation” was signed
by appellant, his attorney, and the assistant criminal district attorney.
During the plea hearing, the trial court asked appellant if he was asking the
trial court to follow the plea agreement, and appellant said, “Yes, Your Honor.” The
trial court told appellant, “In a moment, I’m going to ask you to plead guilty or not
guilty. You can plead no contest if you wish. If you plead guilty or no contest, there
will be no appeal of your plea.” Appellant stated that he understood. The trial court
then asked appellant, “As to the driving while intoxicated, how do you plead?”
–3– Appellant answered, “No contest, Your Honor.” The trial court stated the agreement
would be followed, and the court deferred adjudication of appellant’s guilt and
ordered community supervision in accordance with the agreement. The trial court’s
certification of defendant’s right of appeal states, “I certify that this criminal case:
Is a plea-bargain case, and the defendant has NO right of appeal; the defendant has
waived the right of appeal.”
The record in this case shows appellant pleaded nolo contendere1 and the
punishment did not exceed the punishment recommended by the prosecutor and
agreed to by the defendant. The clerk’s record does not contain any motion ruled on
before trial; the certification of appellant’s right of appeal shows the trial court did
not grant appellant permission to appeal; and no statute expressly authorizes this
specific appeal. Therefore, under Rule 25.2(a), appellant has no right of appeal. See
Chavez, 183 S.W.3d at 680.
Rule 25.2(d) requires the court of appeals to dismiss the appeal if there is no
certification from the trial court showing the defendant has the right of appeal. TEX.
R. APP. P. 25.2(d). The certification affirmatively shows appellant did not have the
right to appeal, and the certification is supported by the record. Therefore, we must
1 A plea of “no contest” is a plea of “nolo contendere,” and the terms are used interchangeably. See, e.g., Jones v. State, 05-20-00476-CR, 2022 WL 17750551, at *3 (Tex. App.—Dallas Dec. 19, 2022, pet. ref’d) (mem. op; not designated for publication). –4– dismiss the appeal. Id.; see Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App.
2005).
We requested the parties to file briefs addressing the jurisdictional issue, and
appellant filed a brief.
Appellant asserts his appeal is authorized by articles 42A.110(a) and
42A.755(e) of the Texas Code of Criminal Procedure. Article 42A.110 is titled,
“Proceedings After Adjudication” and provides, “After an adjudication of guilt, all
proceedings including . . . defendant’s appeal, continue as if the adjudication of guilt
had not been deferred.” TEX. CODE CRIM. PROC. ANN. art. 42A.110(a). This statute
does not apply in this appeal because the record does not show appellant’s guilt has
been adjudicated.
Article 42A.755(e) provides, “The right of the defendant to appeal for a
review of the conviction and punishment, as provided by law, shall be accorded the
defendant at the time the defendant is placed on community supervision.” Id. art.
42A.755(e). “The law,” specifically article 44.02 of the Texas Code of Criminal
Procedure and Rule of Appellate Procedure 25.2(a)(2), however, provides that a
defendant who pleads guilty or nolo contendere in a plea-bargain case may appeal
only in certain situations, none of which exist in this case. Appellant has not shown
that this “specific appeal is expressly authorized by statute.” TEX. R. APP. P.
25.2(a)(2)(C).
–5– Appellant states he “is ‘unsure’ if he received a punishment that exceeded the
punishment recommended by” the State. The record shows the punishment received
was the same as that recommended in the plea agreement. In his argument under
this issue, appellant also asserts that he was denied the right to a full adversarial
hearing, denied “the right to meet any of the prosecutors,” the prosecutor did not file
the approval of appellant’s waiver of a jury trial before appellant entered his plea,
and other assertions; however, none of these arguments show the punishment
recommended by the State as part of the plea bargain differed from the punishment
appellant received.
Appellant also argues he did not waive his right of appeal. The plea
agreement, which is a filled-in form document, states:
(__X__) Defendant waives right to appeal and the right to file a motion for new trial. This provision shows appellant waived the right to appeal as part of the plea
agreement.
Appellant also argues he lacked effective assistance of counsel, his waiver of
his right to a jury trial was coerced and ineffective, the indictment was outside the
statute of limitations, and the jury waiver was not approved and consented to by the
State. The record does not show that appellant received the trial court’s permission
to appeal any of these issues; accordingly, we cannot consider them. See TEX. R.
APP. P. 25.2(a)(2)(B); Adams v. State, 678 S.W.3d 301, 305 (Tex. App.—San
Antonio 2023, no pet.) (“The law is clear that, in plea-bargained cases, we have no –6– authority to address issues that are not authorized by Rule 25.2(a)(2).” (quoting
Estrada v. State, 149 S.W.3d 280, 283 (Tex. App.—Houston [1st Dist.] 2004, pet.
ref'd))).
We conclude we lack jurisdiction over this appeal. We dismiss this appeal for
want of jurisdiction.
/Maricela Breedlove/ 231203f.u05 MARICELA BREEDLOVE Do Not Publish JUSTICE TEX. R. APP. P. 47.2(b)
–7– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
BILLY ROY HIGH, JR., Appellant On Appeal from the County Court at Law No. 4, Collin County, Texas No. 05-23-01203-CR V. Trial Court Cause No. 004-83825- 2020. THE STATE OF TEXAS, Appellee Opinion delivered by Justice Breedlove. Justices Smith and Miskel participating.
Based on the Court’s opinion of this date, the appeal is DISMISSED for want of jurisdiction.
Judgment entered this 2nd day of May, 2024.
–8–