Charlie Rivera v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 12, 2022
• Docket: 05-21-01059-CR
• Status: Published

Opinion

DISMISS and Opinion Filed July 12, 2022

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-01059-CR

CHARLIE RIVERA, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 194th Judicial District Court Dallas County, Texas Trial Court Cause No. F19-53494-M

MEMORANDUM OPINION Before Justices Myers, Carlyle, and Goldstein Opinion by Justice Goldstein Charlie Rivera was indicted for continuous sexual abuse of a young child, an

offense which is punishable by imprisonment for life or a term of not more than 99

years or less than 25 years with no opportunity for probation or parole. On October

6, 2021, after the trial court admonished him, appellant entered into a plea agreement

with the State, agreeing to plead nolo contendere in exchange for the State dropping

the charge to aggravated sexual assault of a child younger than 14 years of age and

recommending a punishment cap of 17 years. The court recessed “until that Pre-

Sentence [report] is prepared and both sides are ready to present evidence” for the

punishment phase. On November 11, 23, and 30, 2021, the trial court held punishment hearings during which witnesses testified and evidence was admitted.

On December 2, 2021, the trial court found appellant guilty of aggravated sexual

assault of a child and assessed punishment at 16 years in prison. The clerk’s record

contains two certifications of appellant’s right to appeal: the first dated October 6,

2021 states “this is a plea-bargain case, and the defendant has NO right of appeal,”

and the second dated December 2, 2021, states “this is not a plea-bargain case, and

the defendant has the right to appeal.”

Appellant was appointed counsel who filed a notice of appeal and later an

Anders brief. After further review of the clerk’s record, the Court had questions

concerning its jurisdiction and sent counsel for both parties a letter requesting briefs

addressing whether the Court has jurisdiction over the appeal. Appellant’s counsel

did not file a response; however, the State filed a letter brief, agreeing that the Court

does not have jurisdiction.

Two basic kinds of plea bargains affect punishment: (1) sentence bargaining

and (2) charge bargaining. Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App.

2003). Sentence bargaining may be for binding or nonbinding recommendations to

the court on sentences, including a recommended cap on a sentence or the State’s

agreement to drop an enhancement paragraph thereby reducing the punishment

range. See id. Charge bargaining involves questions of whether the defendant will

plead guilty to the offense that has been alleged or to a lesser or related offense and

whether the prosecutor will dismiss or refrain from bringing other charges. Id. Both

–2– sentence bargaining and charge bargaining affect punishment and constitute plea

bargain agreements under appellate rule 25.2. See id; TEX. R. APP. P. 25.2(a)(2).

In this case, appellant pleaded nolo contendere in exchange for the State’s

agreement to (1) reduce the charged offense to the lesser-included offense of

aggravated sexual assault of a child, punishable by imprisonment for life or a term

of not more than 99 years or less than 5 years, and (2) recommend a cap of 17 years

punishment. Although the plea agreement referred to this as an “open plea” because

there was no set agreement on the amount of time appellant would serve, it is a plea

bargain because the State agreed to cap punishment at 17 years and to reduce the

case to the lesser-included offense. See Shankle, 119 S.W.3d at 813. Therefore, the

trial court’s December 2, 2021 certification stating this is not a plea bargain is

defective; however, the record supports the October 6, 2021 certification. See Dears

v. State, 154 S.W.3d 610, 613 (Tex. Crim. App 2005).

Under rule 25.2, appellant may appeal only (1) those matters raised by written

motion filed and ruled on before trial, (2) after getting the trial court’s permission to

appeal, and (3) where the specific appeal is expressly authorized by statute. See TEX.

R. APP. P. 25.2(a)(2). Here, the clerk’s record shows certain written pretrial motions

were filed and ruled on in appellant’s favor; the remaining written pretrial motions

were not ruled on by the court.

–3– Appellant did not receive the trial court’s permission to appeal, and there is

no specific statutory authorization that would authorize an appeal in this case. Under

these circumstances, we lack jurisdiction.

We dismiss this appeal.

/Bonnie Lee Goldstein/ BONNIE LEE GOLDSTEIN JUSTICE Do Not Publish TEX. R. APP. P. 47.2(b) 211059F.U05

–4– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

CHARLIE RIVERA, Appellant On Appeal from the 194th Judicial District Court, Dallas County, Texas No. 05-21-01059-CR V. Trial Court Cause No. F19-53494-M. Opinion delivered by Justice THE STATE OF TEXAS, Appellee Goldstein. Justices Myers and Carlyle participating.

Based on the Court’s opinion of this date, we DISMISS this appeal.

Judgment entered July 12, 2022

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