Marcus Lee Benitez v. State

• Court: Court of Appeals of Texas
• Decided: September 29, 2015
• Docket: 01-15-00262-CR
• Status: Published

Opinion

Opinion issued September 29, 2015

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-15-00262-CR ——————————— MARCUS LEE BENITEZ, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court Harris County, Texas Trial Court Cause No. 1413994

MEMORANDUM OPINION

Appellant, Marcus Lee Benitez, was convicted by a jury of the first-degree

felony offense of aggravated robbery—over 65 years old or disabled, on March 2,

2015, and faced a minimum of five years and a maximum of ninety-nine years’

confinement. See TEX. PENAL CODE ANN. §§ 12.32(a), 29.03(a)(3), (b) (West Supp. 2014). After the verdict, appellant reached an agreement with the State as to

punishment and withdrew his election that the jury assess his punishment. In

exchange for appellant’s waiving his right of appeal and pleading true to an

enhancement in the indictment, the State agreed to recommend that appellant be

punished at thirty-five years’ confinement and to dismiss a separate pending felony

charge against him.

On March 2, 2015, after admonishing appellant that his conviction would be

final and there would be no appeal, because he was waiving his right of appeal, the

trial court assessed appellant’s punishment at thirty-five years’ confinement, and

the State confirmed that the separate felony charge was being dismissed, in

accordance with the terms of appellant’s punishment agreement with the State.

The trial court then certified that appellant had waived the right of appeal.

Nevertheless, appellant timely filed a pro se notice of appeal, acknowledging that

his punishment did not exceed the punishment recommended by the State and

agreed to by appellant. However, appellant contended that his waiver agreement

did not preclude appealing any rulings on his pretrial motions, including a motion

to suppress and several pro se motions, including one seeking hybrid

representation. The trial court appointed appellate counsel for appellant, who has

filed an appellate brief challenging the trial court’s denial of his motion to

suppress.

2 The State has filed a motion to dismiss the appeal for want of jurisdiction,

contending that appellant’s waiver of appeal precludes his appeal. Although the

motion does not indicate whether appellant opposes the motion, it was served on

his counsel and more than ten days have passed with no response filed. See TEX.

R. APP. P. 10.3(a)(2). We agree with the State, grant the motion, and dismiss the

appeal.

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

2005). The trial court’s certification, which is included in the record on appeal,

states that appellant has waived the right of appeal. See TEX. R. APP. P. 25.2(a).

The reporter’s record of the punishment hearing reflects the waiver of

appellant’s right of appeal as both his counsel and appellant acknowledged that

his conviction would be final that day because there would be no appeal. The

trial court then explicitly admonished appellant to make sure he understood that

he was waiving his right of appeal, and appellant replied in the affirmative. Then,

in accordance with the terms of appellant’s punishment agreement with the State,

the trial court assessed his punishment at thirty-five years’ confinement and the

State confirmed that the separate felony charge was being dismissed.

3 A valid waiver of appeal prevents a defendant from appealing without the

trial court’s consent. Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim.

App. 2003). When a defendant waives his right of appeal in exchange for

consideration from the State, his waiver is made knowingly, intelligently, and

voluntarily, and he may not appeal any matters unless the trial court first grants

permission. See Ex parte Broadway, 301 S.W.3d 694, 697–99 (Tex. Crim. App.

2009) (holding defendant may knowingly and intelligently waive appeal without

sentencing agreement when consideration is given by State for waiver); Blanco v.

State, 18 S.W.3d 218, 219–20 (Tex. Crim. App. 2000).

This was not a plea-bargain case in which a defendant pleaded guilty before

trial and, if the punishment did not exceed the agreed-upon recommendation, the

trial court’s certification would state that this was a plea-bargain case and whether

the trial court granted a limited right of appeal for pretrial motions or permission

for a general right of appeal. See Ex parte Broadway, 301 S.W.3d at 699

(Womack, J., concurring) (noting Texas Rule of Appellate Procedure “25.2’s

restriction on appeal did not apply” in that case because it was not plea-bargain

case). Instead, the punishment hearing record shows that appellant knowingly,

intelligently, and voluntarily waived his right of appeal after trial in exchange for

the State’s recommendation on the punishment range and the State gave additional

consideration for the waiver by agreeing to dismiss a pending felony charge. See

4 id. at 697–99. Appellant validly waived his right of appeal after trial knowing with

certainty that his punishment would be assessed at confinement for thirty-five

years. See Blanco, 18 S.W.3d at 219 (holding waiver of right to appeal is valid if

appellant knows with certainty punishment that will be assessed). Appellant’s

valid waiver of appeal covers all matters unless the trial court explicitly gave him

permission to appeal. See Monreal, 99 S.W.3d at 622. The record supports the

trial court’s certification that it did not give its permission to appeal on any matters

because this was not a plea-bargain case. See Dears, 154 S.W.3d at 615.

To the extent appellant’s pro se notice of appeal contends that his waiver did

not preclude him from appealing any rulings on his pretrial motions, no written

rulings on his motions were made. Appellant is not entitled to hybrid

representation, and the trial court was under no duty to take action on any of his

pro se motions. See Ex parte Bohannon, 350 S.W.3d 116, 116 n.1 (Tex. Crim.

App. 2011); Scheanette v. State, 144 S.W.3d 503, 505 n.2 (Tex. Crim. App. 2004).

Thus, because appellant has validly waived his right of appeal, we must

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

9, 12 n.12 (Tex. Crim. App. 2009); see also 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

5 the appeal.”); 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 appointing appellate counsel, preparing reporter’s record or preparing

appellate brief).

CONCLUSION

Accordingly, we grant the State’s motion and dismiss this appeal for want

of jurisdiction. See TEX. R. APP. P. 43.2(f). We dismiss any other pending motions

as moot.

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