Kephren Thomas v. State

• Court: Court of Appeals of Texas
• Decided: March 13, 2018
• Docket: 05-17-01342-CR
• Status: Published

Opinion

DISMISSED and Opinion Filed March 13, 2018.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-17-01342-CR

KEPHREN THOMAS, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 4 Dallas County, Texas Trial Court Cause No. F17-16908-K

MEMORANDUM OPINION Before Chief Justice Wright and Justices Myers and Stoddart Opinion by Chief Justice Wright Kephren Thomas appeals the trial court’s judgment convicting him of harassment of a

public servant. Concluding we do not have jurisdiction, we dismiss the appeal.

The record shows appellant and the State entered into a written agreement in which

appellant agreed to plead guilty and waive his right to appeal in exchange for an agreed sentence

of ten years’ imprisonment, probated for ten years, and a fine of $1,000. The plea agreement also

stated that, in addition to the sentence and fine, the State would recommend drug treatment for

appellant. Appellant entered his plea on March 30, 2017. The trial court accepted the plea of

guilty and recessed the hearing so appellant could be “seen by probation.”

On May 30, 2017, appellant filed pro se documents styled “Notice of Rejection of Plea

Bargain & Demand For Speedy Trial” and “Application For Writ of Habeas Corpus.” In his notice of rejection, appellant alleged he entered his plea bargain agreement with the understanding that

he was agreeing to ten years’ community supervision without any drug treatment or “extras,” that

he would not have to pay probation fees, and that he would not stay in Dallas. In his application,

appellant contended his arrest was discriminatory, his bail was excessive, he was entitled to receive

a mental health bond, and he was being denied adequate medical and mental health treatment. On

June 6, 2017, appellant filed a document accusing the Dallas County Sheriff of denying him

adequate health care. There is no indication that appellant’s pro se filings were authorized or

endorsed by his appointed counsel nor does the record show that any of them were presented to

the trial court judge for a ruling. See Ex parte Bohannan, 350 S.W.3d 116, 116 n. 1 (Tex. Crim.

App. 2011) (court would disregard and take no action on numerous pro se submissions from habeas

applicant represented by counsel and not entitled to hybrid representation); Robinson v. State, 240

S.W.3d 919, 922 (Tex. Crim. App. 2007) (defendant has no right to hybrid representation and as

consequence, trial court is free to disregard pro se motions filed by defendant represented by

counsel).

On October 5, 2017, the trial court conducted an abbreviated sentencing hearing in which

appellant was sentenced as follows:

[The Court]: This is Cause Number F17-16908, styled the State of Texas versus Kephren Thomas. Mr. Thomas is in the room, he’s just in the chair with the bailiff. All right. So on the 30th of March you pled guilty. Do you remember that, Mr. Thomas?

[Appellant]: No, ma’am.

[The Court]: Okay. Well, you did. You pled guilty. It’s on the record.

[The Court]: So today I’m going to find that you are guilty, and assess your punishment at 10 years confinement in the Institutional Division. I will suspend the imposition of that confinement, and place you on community supervision for 10 years with a $1,000 fine, which will be probated.

–2– [The Court]: So today we were going to debate whether you were going to have treatment in or out. I tested you for drugs beforehand so that I could make an educated decision. Today you tested positive for Methamphetamine as well as acting a little bit of erratic today. So I’m going to send you to SAFPP, which is what the original plea was. So you’re going to go to SAFPP, and I’ll see you when you get out.

The trial court followed the plea bargain agreement and imposed the agreed punishment

plus the State’s recommendation of drug treatment. The trial court has filed a certification

asserting appellant entered a plea bargain agreement and has no right of appeal. See TEX. R. APP.

P. 25.2(d). In light of the trial court’s certification and the record, the Court requested letter briefs

from the parties to address the question of whether the Court has jurisdiction over the appeal.

Neither party filed a letter brief.

Rule 25.2(a)(2) provides that in a plea-bargained case in which the trial court assesses

punishment that does not exceed the punishment to which the defendant agreed, the defendant may

appeal only those matters raised by written motion filed and ruled on before trial or after getting

the trial court’s permission to appeal. See TEX. R. APP. P. 25.2(a)(2). The record does not show

appellant filed any pretrial motions. As the trial court’s certification attests, appellant has not

received the trial court’s permission to appeal.

Moreover, when a defendant waives the right to appeal in exchange for valuable

consideration from the State, the waiver is enforceable provided it is made voluntarily, knowingly,

and intelligently. See Jones v. State, 488 S.W.3d 801, 807–08 (Tex. Crim. App. 2016); Ex parte

Broadway, 301 S.W.3d 694, 697–99 (Tex. Crim. App. 2009). The plea agreement expresses that

appellant would receive the benefit of an agreed sentence and that the State would recommend he

receive drug treatment. We conclude appellant’s waiver of the right to appeal is enforceable. See

Jones, 488 S.W.3d at 807–08; Broadway, 301 S.W.3d at 699; Blanco v. State, 18 S.W.3d 218, 220

(Tex. Crim. App. 2000).

–3– An appeal must be dismissed if a certification showing that the defendant has the right to

appeal has not been made part of the record. See TEX. R. APP. P. 25.2(d); Dears v. State, 154

S.W.3d 610, 613 (Tex. Crim. App. 2005). In this case, the record supports the trial court’s

certification stating the appeal is a plea-bargained case and appellant has no right to appeal. The

record also shows appellant waived his right to appeal in exchange for valuable consideration from

the State. Because appellant has no right to appeal, we must dismiss the appeal without further

action. See TEX. R. APP. P. 25.2(d); Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006).

We dismiss the appeal for want of jurisdiction.

/Carolyn Wright/ CAROLYN WRIGHT CHIEF JUSTICE

Do Not Publish TEX. R. APP. P. 47 171342F.U05

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

KEPHREN THOMAS, Appellant On Appeal from the Criminal District Court No. 4, Dallas County, Texas No. 05-17-01342-CR V. Trial Court Cause No. F17-16908-K. Opinion delivered by Chief Justice Wright. THE STATE OF TEXAS, Appellee Justices Myers and Stoddart participating.

Based on the Court’s opinion of this date, the appeal is DISMISSED.

Judgment entered this 13th day of March, 2018.

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