Rocael Lopez v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 20, 2024
• Docket: 01-23-00973-CR
• Status: Published

Opinion

Opinion issued June 20, 2024

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-23-00973-CR ——————————— ROCAEL LOPEZ, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court Harris County, Texas Trial Court Case No. 1608062

MEMORANDUM OPINION

Appellant, Rocael Lopez, without an agreed punishment recommendation

from the State, pleaded guilty to the felony offense of aggravated sexual assault of a child.1 The trial court found appellant guilty and assessed appellant’s punishment at

confinement for twenty years and a fine of $100. Appellant timely filed a notice of

appeal.

We dismiss the appeal for lack of jurisdiction.

The Texas Rules of Appellate Procedure clearly set out the right to appeal for

criminal defendants. See Lagunas v. State, No. 01-20-00279-CR, 2020 WL

5823291, at *1 (Tex. App.—Houston [1st Dist.] Oct. 1, 2020, no pet.) (mem. op.,

not designated for publication). Texas Rule of Appellate Procedure 25.2 states that

in a case where a defendant has voluntarily pleaded guilty, the 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. See TEX. R. APP. P. 25.2(a)(2); see

also TEX. CODE CRIM. PROC. ANN. art. 44.02. The trial court must sign a certification

of a defendant’s right of appeal each time it enters a judgment of guilt or other

appealable order. TEX. R. APP. P. 25.2(a)(2). An appeal must be dismissed if a

certification showing that the defendant has a 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).

Here, the trial court’s certification is included in the record on appeal. See

TEX. R. APP. P. 25.2(d). It states that this “[i]s a plea-bargain case[] and [appellant]

1 See TEX. PENAL CODE ANN. § 22.021(a)(1)(B), (a)(2)(B), (e).

2 has NO right of appeal.” TEX. R. APP. P. 25.2(a)(2). Appellant signed the trial

court’s certification. The trial court’s judgment also states: “APPEAL WAIVED,

NO PERMISSION TO APPEAL GRANTED.” The record supports the trial court’s

certification.

Although a defendant has a statutory right to appeal his conviction, a

defendant may waive his right to appeal in all but capital cases. Carson v. State, 559

S.W.3d 489, 492–93 (Tex. Crim. App. 2018). A valid waiver of appeal—one made

voluntarily, knowingly, and intelligently—prevents a defendant from appealing

without the trial court’s consent. See id.; Ex parte Broadway, 301 S.W.3d 694, 697–

99 (Tex. Crim. App. 2009); see also Flores v. State, Nos. 01-20-00243-CR to

01-20-00246-CR, 2020 WL 2988564, at *1 (Tex. App.—Houston [1st Dist.] June 4,

2020, pet. ref’d) (mem. op., not designated for publication). “[A] defendant may

knowingly and intelligently waive his appeal as part of a plea when consideration is

given by the State, even when sentencing is not agreed upon.” Carson, 559 S.W.3d

at 494; see Jones v. State, 488 S.W.3d 801, 804–08 (Tex. Crim. App. 2016)

(explaining presentence waivers of right of appeal have been upheld when record

showed defendant received consideration for waiver); see also TEX. CODE CRIM.

PROC. ANN. art. 1.14(a) (“The defendant in a criminal prosecution for any offense

may waive any rights secured him by law . . . .”); Flores, 2020 WL 2988564, at *1.

3 Here, as part of his guilty plea, appellant signed a “Waiver of Constitutional

Rights, Agreement to Stipulate, and Judicial Confession,” stating:

I intend to enter a plea of guilty without an agreed recommendation of punishment from the [State] and request that my punishment should be set by the judge. I understand that I have not reached an agreement with the [State] as to punishment, and the [State] reserves the right to argue for any sentence within the available range of punishment at my sentencing hearing. Further, in exchange for the [S]tate waiving its right to a jury trial . . . , I agree that I have knowingly, intentionally, and voluntarily waived any right of appeal which I may have.[2]

In exchange for appellant’s waiver of his right to appeal, the State agreed to waive

its right to a jury trial or, more precisely, the State consented to appellant’s waiver

of his right to jury trial. See TEX. CODE CRIM. PROC. ANN. art. 1.13(a) (“The

defendant in a criminal prosecution for any offense other than a capital felony case

in which the [S]tate notifies the court and the defendant that it will seek the death

penalty shall have the right, upon entering a plea, to waive the right of trial by jury,

conditioned, however, that, except as provided by [Texas Code of Criminal

Procedure] [a]rticle 27.19, the waiver must be made in person by the defendant in

writing in open court with the consent and approval of the court, and the attorney

representing the [S]tate.” (emphasis added)); see also Harrison v. State, No.

2 Appellant also signed a document titled, “Advice of Defendant’s Right to Appeal,” which advised appellant that if he “waived or gave up [his] right to appeal, [he] c[ould not] appeal [his] conviction.” (Emphasis omitted.) In signing that document, appellant affirmed that he “read and wr[o]te English” and he had read and understood the document.

4 01-20-00093-CR, 2020 WL 7776082, at *2 (Tex. App.—Houston [1st Dist.] Dec.

31, 2020, no pet.) (mem. op., not designated for publication); Flores, 2020 WL

2988564, at *2. By agreeing to waive its right to a jury trial, the State gave

consideration for appellant’s waiver of his right to appeal. See Carson, 559 S.W.3d

at 492–96; Ex parte Broadway, 301 S.W.3d at 695–99; see also Lagunas, 2020 WL

5823291, at *1 (defendant voluntarily waived his statutorily created right of appeal

in exchange for State waiving its right to jury trial); Flores, 2020 WL 2988564, at

*2.

Although appellant attempts to appeal from the trial court’s judgment of

conviction, the record is clear that appellant voluntarily waived his statutorily

created right of appeal in exchange for the State waiving its right to a jury trial.

Lewis v. State, No. 01-22-00303-CR, 2022 WL 17490998, at *3 (Tex. App.—

Houston [1st Dist.] Oct. 25, 2022, no pet.) (mem. op., not designated for

publication). If a defendant validly waives his right to appeal but nonetheless

appeals, we must dismiss his appeal for lack of jurisdiction. 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 . . . 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, e.g., Lewis, 2022 WL

17490998, at *1–3; Badyrka v. State, No. 01-21-00339-CR, 2021 WL 5312651, at

5 *1–2 (Tex. App.—Houston [1st Dist.] Nov. 16, 2021, no pet.) (mem. op., not

designated for publication).

Accordingly, we dismiss the appeal for lack of jurisdiction. See TEX. R. APP.

P. 43.2(f). We dismiss all pending motions as moot.

PER CURIAM

Panel consists of Justices Landau, Countiss, and Guerra.

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