Christopher John Pascoe v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 8, 2023
• Docket: 01-22-00461-CR
• Status: Published

Opinion

Opinion issued June 8, 2023

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-22-00461-CR ——————————— CHRISTOPHER JOHN PASCOE, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 178th District Court Harris County, Texas Trial Court Case No. 1704869

MEMORANDUM OPINION

Appellant Christopher Pascoe pleaded guilty without an agreed sentencing

recommendation to the first-degree felony offense of aggravated assault of a family

member causing serious bodily injury with a deadly weapon, namely a firearm. See TEX. PENAL CODE § 22.02(a)–(b)(1). The trial court found Pascoe guilty and

sentenced him to 20 years’ imprisonment. Pascoe timely filed a notice of appeal.

We dismiss the appeal for lack of jurisdiction.

The Texas Rules of Appellate Procedure clearly set out the right to appeal

for criminal defendants. See Lewis v. State, No. 01-22-00303-CR, 2022 WL

1465900, at *1 (Tex. App.—Houston [1st Dist.] Oct. 25, 2022, no pet.) (mem. op.,

not designated for publication). Texas Rule of Appellate Procedure 25.2 states that

in a case where a defendant has voluntarily pleaded guilty, the defendant may

appeal only those matters that were raised by written motion filed and ruled on

before trial or after getting the trial court’s permission. See TEX. R. APP. P.

25.2(a)(2); see also TEX. CODE CRIM. PROC. Art. 44.02. The trial court must sign a

certification of a defendant’s right of appeal each time it enters a judgment of guilt

or other appealable order. TEX. R. APP. P. 25.2(a)(2). An appeal must be dismissed

if a certification showing that the defendant has a right of appeal has not been

made part of the record. TEX. R. APP. P. 25.2(d); Dears v. State, 154 S.W.3d 610,

613 (Tex. Crim. App. 2005).

Pascoe’s counsel filed a letter in lieu of a brief stating that the clerk’s record

indicates that Pascoe waived his right of appeal. The trial court’s certification is

included in the record on appeal. See TEX. R. APP. P. 25.2(d). It states that the

2 appellant “has waived the right of appeal.” Pascoe and his trial counsel signed the

trial court’s certification.

Although a defendant has a statutory right to appeal his conviction, a

defendant may waive his right to appeal in all but capital cases. Carson v. State,

559 S.W.3d 489, 492–93 (Tex. Crim. App. 2018). A valid waiver of appeal, one

that is made voluntarily, knowingly, and intelligently, prevents a defendant from

appealing without the trial court’s consent. See id.; Lewis, 2022 WL 14165900 at

*2. “[A] defendant may knowingly and intelligently waive his appeal as part of a

plea when consideration is given by the State, even when sentencing is not agreed

upon.” Carson, 559 S.W.3d at 494; see Jones v. State, 488 S.W.3d 801, 804–08

(Tex. Crim. App. 2016) (explaining presentence waivers of right of appeal have

been upheld when record showed defendant received consideration for waiver); see

also TEX. CODE CRIM. PROC. art. 1.14(a) (“The defendant in a criminal prosecution

for any offense may waive any rights secured him by law . . . .”).

As part of his guilty plea, Pascoe signed a “Waiver of Constitutional Rights,

Agreement to Stipulate, and Judicial Confession” stating that Pascoe agreed to

“waive any right of appeal which [he] may have.” The document states that Pascoe

has not reached an agreement with the prosecutor regarding punishment, but “in

exchange for the State waiving their right to a jury trial, I intend to enter a plea of

guilty without an agreed recommendation . . . .” The document also contains trial

3 counsel’s affirmation that the agreement was knowingly and freely made after

counsel fully discussed the consequences with Pascoe. The trial court signed the

document and confirmed that the court had admonished Pascoe regarding the

consequences of his plea and believed Pascoe to be mentally competent and

entering the plea freely and voluntarily. In exchange for Pascoe’s waiver of his

right to appeal, the State consented to his waiver of the right to jury trial. See TEX.

CODE CRIM. PROC. art. 1.13(a) (“The defendant in a criminal prosecution for any

offense other than a capital felony case in which the [S]tate notifies the court and

the defendant that it will seek the death penalty shall have the right, upon entering

a plea, to waive the right of trial by jury, conditioned, however, that except as

provided by [the Texas Code of Criminal Procedure] [a]rticle 27.19, the waiver

must be made in person by the defendant in writing in open court with the consent

and approval of the court, and the attorney representing the [S]tate.” By agreeing to

the waiver of a jury trial, the State gave consideration for Pascoe’s waiver of his

right to appeal. Lewis, 2022 WL 14165900, at *2.

Although Pascoe attempts to appeal from the trial court’s judgment of

conviction, the record is clear that he voluntarily waived his statutorily created

right of appeal in exchange for the State waiving the right to a jury trial. If a

defendant validly waives his right to appeal but nonetheless appeals, we must

dismiss his appeal for lack of jurisdiction. See Chavez v. State, 183 S.W.3d 675,

4 680 (Tex. Crim. App. 2006) (“A court of appeals, while having jurisdiction to

ascertain whether an appellant . . . is permitted to appeal by [Texas Rule of

Appellate Procedure] 25.2(a)(2), must dismiss a prohibited appeal without further

action, regardless of the basis for the appeal.”).

Accordingly, we dismiss the appeal for lack of jurisdiction. See TEX. R. APP.

P. 43.2(f).

Peter Kelly Justice

Panel consists of Chief Justice Adams and Justices Kelly and Goodman.

Do not publish. TEX. R. APP. P. 47.2(b).