Edward Bernard Davenport v. State

• Court: Court of Appeals of Texas
• Decided: December 1, 2015
• Docket: 01-14-00276-CR
• Status: Published

Opinion

Opinion issued December 1, 2015

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-14-00276-CR ——————————— EDWARD BERNARD DAVENPORT, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from 351st District Court Harris County, Texas Trial Court Cause No. 1393017

MEMORANDUM OPINION

Appellant, Edward Bernard Davenport, pleaded guilty to the third-degree

felony offense of failure to comply with sex offender registration requirements,

with the agreed recommendation that he receive two years’ confinement. See TEX.

CODE CRIM. PROC. ANN. art. 62.102(a), (b)(2) (West Supp. 2014). On February 13, 2014, the trial court assessed appellant’s punishment at two years’ confinement, in

accordance with the terms of his plea bargain with the State. The trial court

certified that this is a plea-bargain case and that appellant has no right of appeal.

Nevertheless, appellant timely filed a pro se notice of appeal on March 7,

2014. The trial court appointed James Sidney Crowley as appellant’s appellate

counsel, who filed a motion to withdraw with an Anders brief stating that the

record presents no non-frivolous issues or reversible error and that, therefore, this

appeal is without merit and is frivolous. See Anders v. California, 386 U.S. 738,

87 S. Ct. 1396 (1967). Appellant has not filed any response to his counsel’s

Anders brief. We dismiss the appeal for want of jurisdiction.

An appeal must be dismissed if a certification showing that the defendant

has the right of appeal has not been made part of the record. TEX. R. APP. P.

25.2(d); see Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005). The

trial court’s certification, which is included in the clerk’s record, states that this is a

plea-bargain case and that appellant has no right of appeal. See TEX. R. APP. P.

25.2(a)(2), (d).

In a plea-bargain case—where a defendant pleaded guilty and the

punishment did not exceed the punishment recommended by the prosecutor and

agreed to by the defendant, as here—a defendant may only appeal those matters

that were raised by written motion filed and ruled on before trial or after getting the

2 trial court’s permission to appeal. TEX. CODE CRIM. PROC. ANN. art. 44.02 (West

Supp. 2014); TEX. R. APP. P. 25.2(a)(2). Here, the clerk’s record contains plea

information, waiver, and admonishment papers indicating that appellant was

indicted for failure to comply with sex offender registration requirements, and that

he pleaded guilty to this charge in exchange for the State’s recommendation that

his punishment be assessed at two years’ confinement, and the standard waiver of

his right of appeal if the trial court accepted the plea-bargain agreement. The

reporter’s record for the plea hearing in this case, which was combined with the

record for the motion to adjudicate hearing in a related case, shows that appellant

voluntarily, intelligently, and knowingly pleaded guilty to the charge of failure to

comply with sex offender registration requirements in exchange for two years’

confinement, and the trial court accepted the plea bargain and assessed his

punishment at two years’ confinement.1

The judgment of conviction in the clerk’s record also reflects that the trial

court accepted the plea-bargain agreement because the court assessed appellant’s

punishment at two years’ confinement. See TEX. R. APP. P. 25.2(a)(2). Thus, the

record supports the trial court’s certification that this is a plea-bargain case and the

1 The trial court set appellant’s sentence in this case to run concurrently with the twenty-year sentence he received in his related trial court cause No. 1213794, which is pending under appellate cause No. 01-14-00275-CR. 3 trial court did not give its permission to appeal on any matters, including any

rulings on pretrial motions. See Dears, 154 S.W.3d at 615.

To the extent appellant’s pro se notice of appeal contends that he is

permitted to challenge rulings on pretrial motions, a review of the clerk’s record

does not show that any written rulings on pretrial motions were adverse to

appellant. And, to the extent appellant contends that his plea was involuntary, the

Texas Court of Criminal Appeals has held that the voluntariness of a guilty plea

may not be contested on direct appeal following a plea–bargain agreement. See

Woods v. State, 108 S.W.3d 314, 316 & n.6 (Tex. Crim. App. 2003); Cooper v.

State, 45 S.W.3d 77, 81, 83 (Tex. Crim. App. 2001).

Because appellant has no right of appeal in this plea-bargain case, we must

dismiss this appeal without further action. See Menefee v. State, 287 S.W.3d 9, 12

n.12 (Tex. Crim. App. 2009); Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim.

App. 2006) (“A court of appeals, while having jurisdiction to ascertain whether an

appellant who plea-bargained is permitted to appeal by Rule 25.2(a), must dismiss

a prohibited appeal without further action, regardless of the basis for the appeal.”);

see also Greenwell v. Court of Appeals for Thirteenth Judicial Dist., 159 S.W.3d

645, 649 (Tex. Crim. App. 2005) (explaining purpose of certification requirements

is to resolve cases that have no right of appeal quickly without expense of

4 appointing appellate counsel, preparing reporter’s record or preparing appellate

brief).

CONCLUSION

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

APP. P. 43.2(f). We dismiss all pending motions as moot.2

PER CURIAM Panel consists of Justices Jennings, Keyes, and Bland. Do not publish. TEX. R. APP. P. 47.2(b).

2 Attorney James Sidney Crowley must immediately send the required notice and file a copy of that notice with the Clerk of this Court. See TEX. R. APP. P. 6.5(c). Appointed counsel still has a duty to inform appellant of the result of this appeal and that he may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). 5