Ricky Dewayne Nickerson v. State

• Court: Court of Appeals of Texas
• Decided: March 26, 2015
• Docket: 01-14-00683-CR
• Status: Published

Opinion

Opinion issued March 26, 2015

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-14-00683-CR ——————————— RICKY DEWAYNE NICKERSON, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court Harris County, Texas Trial Court Case No. 1415899

MEMORANDUM OPINION

Appellant, Ricky Dewayne Nickerson, pleaded guilty to the state-jail felony

offense of burglary of a building.1 The trial court deferred making a finding of

guilt and, in accordance with the terms of appellant’s plea bargain agreement with

1 See TEX. PENAL CODE ANN. § 30.02(a)(1), (c)(1) (West 2011). the State, placed appellant on community supervision for a period of three years.

The trial court certified that this was a plea-bargain case and that appellant had no

right of appeal.

Subsequently, the State moved to revoke appellant’s supervision and for

adjudication of guilt. Appellant pleaded true to the State’s allegations and

executed a waiver of his right to appeal, in exchange for the State’s

recommendation that punishment be assessed at confinement in the State Jail

Division of the Texas Department of Criminal Justice for nine months and

imposition of a $500 fine. The trial court revoked appellant’s community

supervision, adjudicated appellant guilty, and assessed appellant’s punishment in

accordance with the recommendation of the State. The trial court certified that

appellant has no right of appeal. Nevertheless, appellant filed a pro se notice of

appeal. We 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 no right of appeal.2 See TEX. R. APP. P. 25.2(a).

2 The certification of appellant’s right of appeal indicates that this “is a plea-bargain case, and the defendant has NO right of appeal.” Because appellant is appealing from his plea of true to a motion to adjudicate his guilt and not from a plea of 2 The record reflects that appellant swore to a stipulation of evidence and

judicial confession, pleading “true” to the allegations in the State’s motion to

adjudicate appellant’s guilt. The document contains an agreement that the State

would recommend revocation of appellant’s community supervision, punishment

of confinement for nine months, and imposition of a $500 fine. The document also

includes a “Waiver of Appeal,” stating that, “As part of my agreement with the

prosecutor to plead true, I AGREE TO WAIVE any right to appeal I may have

concerning any issue or claim in this case, including my plea or [sic] true or

admission of guilt.” Appellant separately initialed the waiver of appeal. The trial

court found the allegations true, adjudicated appellant guilty of the underlying

offense, and assessed punishment in accordance with the recommendation.

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

guilty or nolo contendere to the original charge, appellant could not have entered into a “plea bargain” and the certification is incorrect. See Hargesheimer v. State, 182 S.W.3d 906, 912–13 (Tex. Crim. App. 2006); Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005); Gutierrez v. State, 108 S.W.3d 304, 309–10 (Tex. Crim. App. 2003). Nevertheless, because the appellant waived his right to appeal in exchange for the State’s recommendation on punishment, the trial court’s certification correctly states that the appellant has no right to appeal and we do not need to abate the case for the trial court to correct the certification. See infra. 3 parte Broadway, 301 S.W.3d 694, 697–99 (Tex. Crim. App. 2009) (holding that

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). The record shows that appellant

waived his right to appeal as partial consideration, along with his plea of true, for

the State’s recommendation on punishment and that the trial court did not give its

permission to appeal.

Because appellant has no right of appeal, we must dismiss this appeal. See

Menefee v. State, 287 S.W.3d 9, 12 n.12 (Tex. Crim. App. 2009); Dears, 154

S.W.3d at 613.

Accordingly, we dismiss the appeal for want of jurisdiction. We dismiss all

pending motions as moot.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.

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