Phanomphone Tanovanh v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 30, 2024
• Docket: 01-23-00529-CR
• Status: Published

Opinion

Opinion issued May 30, 2024

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-23-00528-CR NO. 01-23-00529-CR ——————————— PHANOMPHONE TANOVANH, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court Harris County, Texas Trial Court Case Nos. 1743379, 1743381

MEMORANDUM OPINION

In appellate case number 01-23-00528-CR, appellant, Phanomphone

Tanovanh, with an agreed punishment recommendation from the State, pleaded guilty to the felony offense of evading arrest or detention1 and “true” to the allegation

in an enhancement paragraph that he had been previously convicted of a felony

offense.

In appellate case number 01-23-00529-CR, appellant, with an agreed

punishment recommendation from the State, pleaded guilty to the felony offense of

possession of a controlled substance, namely, methamphetamine weighing more

than one gram and less than four grams by aggregate weight,2 and “true” to the

allegation in an enhancement paragraph that he had been previously convicted of a

felony offense.

In accordance with his plea agreements with the State, the trial court found

appellant guilty of each offense and assessed his punishment at confinement for

twenty years, with the sentences to run concurrently. Appellant, acting pro se, timely

filed a notice of appeal from each judgment.

We dismiss the appeals for lack of jurisdiction.

“Courts always have jurisdiction to determine their own jurisdiction.” Harrell

v. State, 286 S.W.3d 315, 317 (Tex. 2009) (internal quotations omitted). Criminal

defendants have a statutory right to appeal their conviction. See TEX. CODE CRIM.

1 See TEX. PENAL CODE ANN. § 38.04(a), (b)(2)(A); appellate case no. 01-23-00528-CR, trial court case no. 1743379. 2 See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (c); appellate case no. 01-23-00529-CR, trial court case no. 1743381.

2 PROC. ANN. art. 44.02; Carson v. State, 559 S.W.3d 489, 492 (Tex. Crim. App.

2018). However, when a trial court enters a judgment of guilt, it must certify

whether the defendant has a right of appeal. See TEX. R. APP. P. 25.2(a)(2). Texas

Rule of Appellate Procedure 25.2(a) states that:

In a plea bargain case—that is, a case in which a defendant’s plea was guilty . . . and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant—a defendant may appeal only: (A) those matters that were raised by written motion filed and ruled on before trial, (B) after getting the trial court’s permission to appeal, or (C) where the specific appeal is expressly authorized by statute.

TEX. R. APP. P. 25.2(a)(2).

Accordingly, in a plea-bargain case, a defendant may only appeal those

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

getting the trial court’s permission to appeal. Id.; see also TEX. CODE CRIM. PROC.

ANN. art. 44.02. An appeal must be dismissed if a certification showing that a

defendant has the right of appeal has not been made part of the record. See TEX. R.

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

2005).

In appellate case number 01-23-00528-CR, the clerk’s record included a

certification of appellant’s right of appeal stating that this was “a plea-bargain case,

and the [appellant] ha[d] NO right of appeal.” The clerk’s record also included the

plea waivers and plea terms, confirming that appellant pleaded guilty to the offense

3 of evading arrest or detention in exchange for (1) the State’s agreement to abandon

a second enhancement paragraph and (2) a punishment recommendation of

confinement for twenty years. Further, the trial court’s judgment stated that

appellant waived his right to appeal and “NO PERMISSION TO APPEAL [WAS]

GRANTED” by the trial court.

The appellate record supports the trial court’s certification in appellate case

number 01-23-00528-CR. Because appellant has no right of appeal, we must dismiss

his appeal. See 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 [Texas Rule of Appellate Procedure]

25.2(a)(2), must dismiss a prohibited appeal without further action, regardless of the

basis for the appeal.”); see also Fairley v. State, Nos. 01-20-00824-CR, 01-20-

00825-CR, 2022 WL 210457, at *1–3 (Tex. App.—Houston [1st Dist.] Jan. 25,

2022, no pet.) (mem. op., not designated for publication).

In appellate case number 01-23-00529-CR, the clerk’s record included a

certification of appellant’s right of appeal stating that this was “a plea-bargain case,

but the trial court ha[d] given permission to appeal, and the [appellant] ha[d] the

right of appeal.” However, this certification conflicted with the appellate record.

For example, the trial court’s judgment stated: “APPEAL WAIVED, NO

PERMISSION TO APPEAL GRANTED.”

4 Additionally, the clerk’s record included a “Waiver of Constitutional Rights,

Agreement to Stipulate, and Judicial Confession,” signed by appellant, in which he

stipulated, among other things, that he had “waive[d] any right of appeal which [he]

may have should the court accept the foregoing plea bargain between [appellant] and

the [State].” Appellant’s waiver of rights also included the terms of his plea

agreement with the State in which appellant pleaded guilty to the offense of

possession of a controlled substance, namely, methamphetamine weighing more

than one gram and less than four grams by aggregate weight, in exchange for (1) the

State’s agreement to abandon a second enhancement paragraph, and (2) a

punishment recommendation of confinement for twenty years.

Appellant further executed written “Admonishments” in which he

acknowledged, among other things, that if “the punishment assessed by the [trial]

court [did] not exceed the punishment recommended by the [State] and agreed to by

[appellant] and [his] attorney, the court must give its permission to [appellant] before

[he] may prosecute an appeal on any matter in this case except for those matters

raised by [appellant] by written motion filed prior to trial.”

Based on the inconsistency between the trial court’s certification and the

appellate record, the Court abated these appeals and directed the trial court make

findings clarifying whether the trial court granted appellant permission to appeal in

5 appellate case number 01-23-00529-CR, and, if necessary, execute an amended

certification of appellant’s right of appeal.

The trial court held a hearing in connection with the Court’s abatement order.

During that hearing, the trial court clarified that, pursuant to the terms of appellant’s

plea-bargain agreement with the State, appellant did not have a right of appeal, and

that the indication on the trial court’s certification of appellant’s right of appeal that

the trial court had granted him permission to appeal was “just a clerical error in

[appellant’s] plea paperwork.” A supplemental clerk’s record was then filed with

the Court which included an amended certification of appellant’s right of appeal

stating that this was “a plea-bargain case, and the [appellant] ha[d] NO right of

appeal.”

The record supports the trial court’s amended certification in appellate case

number 01-23-00529-CR. Because appellant has no right of appeal, we must dismiss

his appeal. See Chavez, 183 S.W.3d at 680 (“A court of appeals, while having

jurisdiction to ascertain whether an appellant who plea-bargained is permitted to

appeal by [Texas Rule of Appellate Procedure] 25.2(a)(2), must dismiss a prohibited

appeal without further action, regardless of the basis for the appeal.”); see also

Fairley, 2022 WL 210457, at *1–3.

6 Accordingly, we reinstate these appeals to the Court’s active docket and

dismiss the appeals for lack of jurisdiction. See TEX. R. APP. P. 43.2(f). We dismiss

any pending motions as moot.

PER CURIAM

Panel consists of Justices Landau, Countiss, and Guerra.

Do not publish. TEX. R. APP. P. 47.2(b).