Matthew Regan v. State

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-20-00135-CR ___________________________

MATTHEW REGAN, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 367th District Court Denton County, Texas Trial Court No. F19-2862-367

Before Sudderth, C.J.; Kerr and Walker, JJ. Memorandum Opinion by Justice Walker MEMORANDUM OPINION

Appellant Matthew Regan attempts to appeal from his conviction for

misdemeanor driving while intoxicated (DWI). However, because Regan was

convicted after pleading guilty, which was the result of a plea-bargain agreement with

the State in which he expressly waived his right to appeal, and because the trial court

has certified that Regan does not have the right to appeal, we dismiss his attempted

appeal.

Regan was indicted with felony DWI. See Tex. Penal Code Ann. §§ 49.04(a),

49.09(b)(2). In exchange for Regan’s guilty plea, the State agreed to seek a conviction

for the lesser-included offense of Class A misdemeanor DWI, for which Regan would

receive 24 months of community supervision and a $1,500 fine. See id. § 49.09(a).

On August 27, 2020, Regan pleaded guilty to misdemeanor DWI and signed a

judicial confession that included a waiver of appeal:

I understand that where there is a plea bargain agreement and the punishment assessed by the Court does not exceed the agreed recommendation, I do not have the right to appeal without permission of the Court, except for those matters raised by written motions and presented to the Court prior to trial and that I have the right to be represented on appeal by an attorney . . . . With a full understanding of the foregoing, I hereby, with the consent and approval of my attorney, in person, in writing, and in open court waive the right to any appeal in this case and state that I do not desire to appeal.

The trial court found that Regan’s guilty plea was freely and voluntarily made and

adjudged him guilty of misdemeanor DWI. The trial court entered a judgment of

conviction that sentenced Regan to 365 days’ confinement with a $1,500 fine,

2 suspended the sentence of confinement, and placed Regan on community supervision

for 24 months. See Tex. Code Crim. Proc. Ann. art. 42A.053(a). One of the

conditions of community supervision prohibited Regan from owning or possessing a

firearm. The trial court then signed a certification that Regan did not have the right to

appeal because of the plea bargain and because of the express waiver. See Tex. R.

App. P. 25.2(a)(2), (d); see also Tex. Code Crim. Proc. Ann. arts. 1.14(a), 44.02.

On September 17, Regan objected to the firearm prohibition imposed as a

condition of community supervision, arguing that it violated his right to due process,

was not related to his offense, and was unreasonable. After a hearing, the trial court

overruled Regan’s objection on September 24. On September 28, Regan filed a notice

of appeal, specifying that he desired to appeal the firearm-prohibition condition.

We notified Regan that we questioned whether we could continue his appeal

based on his express waiver and on the trial court’s certification and invited his

response, warning that we could dismiss his appeal. See Tex. R. App. P. 44.3. Regan

responded and first asserted that the certification was incorrect because he had

challenged the community-supervision condition in a written motion that was ruled

on by the trial court. But Regan filed his objection after the condition was imposed,

which was after the guilty-plea proceeding. Cf. Damron v. State, No. 02-08-00399-CR,

2010 WL 1006392, at *3 (Tex. App.—Fort Worth Mar. 18, 2010, no pet.) (mem. op.,

not designated for publication) (recognizing Rule 25.2 permitted plea-bargaining

3 defendant to appeal community-supervision condition because motion objecting to

the condition had been filed and ruled on before the plea proceeding).

Regan’s second line of attack is his argument that because he was placed on

deferred-adjudication community supervision, there was no conviction, which allows

him to challenge the community-supervision condition notwithstanding his plea-

bargained guilty plea. Regan is incorrect: Adjudication of his guilt was not deferred,

and a judgment of conviction was entered. Thus, even if Regan’s arguments regarding

Rule 25.2 in the deferred-adjudication context are correct, Rule 25.2 applies here. See,

e.g., Evans v. State, No. 06-11-00152-CR, 2011 WL 5843044, at *1 (Tex. App.—

Texarkana Nov. 22, 2011, no pet.) (mem. op., not designated for publication);

Lundgren v. State, No. 02-11-00023-CR, 2011 WL 754344, at *1 (Tex. App.—Fort

Worth Mar. 3, 2011, no pet.) (per curiam) (mem. op., not designated for publication).

The record before this court does not show that Regan’s sentence exceeded the

State’s recommendation, that Regan desires to appeal a matter that was raised by

written motion filed and ruled on before trial, or that the trial court granted Regan

permission to appeal. See Tex. Code Crim. Proc. Ann. art. 44.02; Tex. R. App. P.

25.2(a)(2). Thus, in accordance with the trial court’s certification and Regan’s waiver

of his right to appeal, we dismiss his appeal.1 See Tex. R. App. P. 25.2(d), 43.2(f);

1 Regan also argues that declining to hear his appeal will require him to file a writ of habeas corpus and that “[s]uch legal maneuvers are entirely unnecessary and wasteful.” Regan is nonetheless bound by the required procedures to invoke our jurisdiction. See Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996).

4 Marsh v. State, 444 S.W.3d 654, 660 (Tex. Crim. App. 2014); Chavez v .State, 183 S.W.3d

675, 680 (Tex. Crim. App. 2006).

/s/ Brian Walker

Brian Walker Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: February 25, 2021