Jennifer Renee Davis v. State

• Court: Court of Appeals of Texas
• Decided: October 14, 2020
• Docket: 07-20-00120-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-20-00120-CR

JENNIFER RENEE DAVIS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 54th District Court1 McLennan County, Texas Trial Court No. 2019-1513-C2, Honorable Matt Johnson, Presiding

October 14, 2020

MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.

Pursuant to a plea bargain agreement, appellant, Jennifer Renee Davis, pled guilty

to the offense of possession of a controlled substance in an amount less than one gram,

a state jail felony.2 The trial court sentenced her to twenty-four months’ confinement.

Notwithstanding the trial court’s certification that appellant has no right of appeal, she filed

1 Originally appealed to the Tenth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013).

2 TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West 2017). this appeal. Now pending before this Court is the State’s Motion to Dismiss based on the

trial court’s certification. We grant the motion and dismiss the appeal.

Background

Appellant was indicted for the third-degree felony offense of possession of a controlled

substance in an amount of one gram or more but less than four grams. TEX. HEALTH &

SAFETY CODE ANN. § 481.115(c). She later entered into a plea agreement with the State,

agreeing to plead guilty to the lesser-included offense of state-jail felony possession in

exchange for a recommended sentence of nine-months’ confinement. Appellant pled

guilty to this lesser-included offense at her arraignment on December 16, 2019.

As part of her plea agreement, appellant requested to remain free on bond until

sentencing and agreed, per the Request Concerning Bond Pending Further Proceedings

Disclosure of Further Negotiated Plea Agreement, that failure to appear would authorize

the trial court to “impose a sentence within the full range of punishment, up to and

including the maximum time and fine provided by law for the offense.” The plea

agreement further provided that “[s]hould Defendant fail to so appear [she] agrees and

stipulates that for purposes of appeal the punishment actually assessed and imposed by

the Trial Court will not and does not exceed the punishment recommended by the

prosecutor and agreed to by the Defendant.”

Appellant failed to appear for her sentencing hearing on January 10, 2020. She

appeared before the trial court, however, on March 5, 2020. At that time, the trial court

accepted her guilty plea, adjudged appellant guilty, and sentenced her to the maximum

time allowed for the state-jail felony offense, twenty-four months’ confinement. See TEX.

2 PENAL CODE ANN. § 12.35(a) (West 2019). The trial court also signed a certification

reflecting that this “is a plea-bargain case, and the defendant has NO right of appeal.”

Analysis

A trial court must enter 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). In a plea

bargain case, where a defendant’s plea was guilty and the punishment assessed did not

exceed the punishment recommended by the State, an appellant may only appeal those

matters 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 law. Id.

Appellate courts must ascertain whether a certification comports with the appellate

record. Dears v. State, 154 S.W.3d 610, 614-15 (Tex. Crim. App. 2005). If a certification

that shows the defendant has the right of appeal has not been made part of the record,

an appellate court must dismiss the appeal. TEX. R. APP. P. 25.2(d).

Although appellant’s sentence exceeded the nine months’ confinement

recommended by the State, the trial court followed the terms of the “further negotiated

plea agreement” by imposing a sentence within the full range of punishment for the

offense after appellant failed to appear. See Hallmark v. State, 541 S.W.3d 167, 170

(Tex. Crim. App. 2017) (concluding that a trial court properly followed a plea agreement that

allowed appellant to be sentenced within the full range of punishment if she failed to appear

for sentencing). By the express terms of the plea agreement, this conditional sentence did

“not exceed the punishment recommended by the prosecutor and agreed to by the

Defendant.” Accordingly, the trial court’s certification that this is a plea bargain case with no

3 right of appeal comports with the record. See TEX. R. APP. 25.2(a)(2); Dears, 154 S.W.3d

at 613-15.

By letter of September 21, 2020, we directed appellant to respond to the State’s

Motion to Dismiss. Appellant’s counsel filed a response stating that he found no legal

basis to oppose the State’s motion.

Because the trial court has filed a certification reflecting that appellant has no right

of appeal and appellant has not demonstrated grounds for continuing the appeal, we grant

the State’s Motion to Dismiss and dismiss the appeal based on the certification. See TEX.

R. APP. P. 25.2(d).

Per Curiam

Do not publish.