Torres v. State

493 S.W.3d 213, 2016 WL 2936401, 2016 Tex. App. LEXIS 5215
CourtCourt of Appeals of Texas
DecidedMay 18, 2016
DocketNo. 04-15-00331-CR
StatusPublished
Cited by7 cases

This text of 493 S.W.3d 213 (Torres v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Torres v. State, 493 S.W.3d 213, 2016 WL 2936401, 2016 Tex. App. LEXIS 5215 (Tex. Ct. App. 2016).

Opinion

OPINION

Opinion by:

Rebeca C. Martinez, Justice

Fernando Torres pled guilty to aggravated assault with a deadly weapon but later obtained the trial court’s permission to appeal. In his sole issue on appeal, Torres argues the evidence is insufficient to support the court’s finding that he used a lit cigarette as a deadly weapon during the commission of the assault. The State argues that this court' lacks jurisdiction over Torres’ appeal because the trial court’s amended certification giving Torres the right to appeal was signed on the 78th day after judgment was imposed. In the alternative, the State asserts that Torres’ judicial confession to the charged offense, along with his written waiver and consent to the stipulated evidence, is sufficient to support the deadly weapon finding and conviction.

Background

Torres was charged by information with aggravated assault with a deadly weapon based on an incident that occurred on May 22, 2014. See Tex. Penal Code Ann. § 22.02(a) (West 2011). Torres subsequently entered a plea of guilty pursuant [215]*215to a plea bargain agreement in which the State agreed to dismiss a sexual assault charge arising out of the same incident and to a cap of ten years’ imprisonment and a fíne of $1,500 on the aggravated assault; it opposed Torres’ application for deferred adjudication. After admonishing Torres on the consequences of pleading guilty and confirming his plea was knowing and voluntary, the trial court accepted Torres’s guilty plea and found the stipulated evidence sufficient to substantiate his guilt. At the conclusion of the punishment hearing on March. 5, 2015, the trial court followed the plea bargain agreement and imposed a sentence of ten years’ imprisonment and a $1,500 fine, and made an affirmative deadly weapon finding. On the same Sate, the court signed a certification of right to appeal stating that the case is a plea bargain case and Torres has no right of appeal. See Tex, R. App. P. 25.2(a)(2).

Torres filed a timely motion for new trial alleging that the stipulated evidence was insufficient as a matter of law with respect to the lit cigarette constituting a deadly weapon. The trial court did not rule on the motion for new trial and it was overruled by operation of law on May 19, 2015, the 75th day after judgment. See Tex. R. App. P. 21.8. On May 22,2015, the trial court signed an amended certification of right to appeal stating the case is a plea bargain case “but issues were raised by written motion for new trial and I hereby grant Defendant [the] right to appeal.” Torres thereafter, filed a timely notice of appeal. See Tex. R. App. P. 26.2(a)(2) (when a timely motion for new trial is filed, a defendant’s notice of appeal is due within 90 days after the date sentence is imposed).

Analysis

Jurisdiction

We first address the State’s argument that the appeal must be dismissed for lack of jurisdiction. When a defendant pleads guilty or no. contest pursuant to a plea bargain and the punishment imposed does not exceed the agreement, the defendant may only appeal matters raised in a pretrial motion ruled on before trial or after obtaining the trial court’s permission. Tex,' R. App, P. 25.2(a)(2). The trial court must sign a certification of the defendant’s right to appeal and the appeal must be dismissed if a certification showing the defendant has the right of appeal is not part of the record. Id.; Tex. R. App. P. 25.2(d).

The State argues that Torres’ appeal must be dismissed because the trial, court lacked jurisdiction to sign an amended certification giving him the right to appeal after expiration of the 75-day deadline for ruling on his motion for new trial. In support, the State relies on Texas Rules of Appellate Procedure 21.8 and 22.4 which provide that a motion for new trial or motion in arrest of judgment, if not ruled on by the trial court, is denied by operation of law on the 75th day after judgment is imposed. See Tex. R. App. P. 21.8, 22.4. The State cites cases which hold the trial court has no jurisdiction to modify a sentence or grant a new trial after the 75-day period expires. See State v. Aguilera, 165 S.W.3d 695, 697 (Tex.Crim.App.2005) (noting that, “[a]t a minimum, a trial court retains plenary power to modify its sentence if a motion for new trial or. motion in arrest of judgment is filed within 30 days of sentencing,” and holding that a trial court also retains .plenary power to modify its sentence in :open court before adjournment on the same day the .original sentence is imposed); see also State v. Bates, 889 S.W.2d 306, 310 (Tex.Crim.App.1994) (trial court’s order granting new trial more than 75 days after judgment- was void); State ex rel. Cobb v. Godfrey, 739 S.W.2d [216]*21647, 49 (Tex.Crim.App.1987) (orig.proceeding) (same). All of the cases cited by the State involve a trial court granting a new trial or modifying a sentence more than 75 days after imposition of the judgment. The State cites no case holding that the trial court lacks, authority to sign an amended Rule 25.2. certification giving a defendant the right to appeal in a plea bargain case after expiration of the 75-day period, and we have found no such case.

Indeed, the plain language of subsection (f) of Rule 25.2 expressly authorizes amendment of the trial court’s certification of the defendant’s right of appeal to correct “a defect or omission” in a previously filed certification “at any time before the appealing party’s brief is filed.” Tex. R. App. P. 25.2(f) (amended trial court certification may be filed in the appellate court in accordance with Tex. R. App. P. 37.1, providing for notice and thirty days to cure a defective certification, or at any time before the appellant’s brief is filed if Rule 37.1 is not used by the court of appeals). In Dears v. State, .the Court of Criminal Appeals addressed, when a Rule 25.2 certification of right to appeal is “defective,” holding that a certification is defective, although correct in form, “when compared with the record before the court [it] proves to be inaccurate.” Dears v. State, 154 S.W.3d 610, 614 (Tex.Crim.App.2005) (citing Daniels v. State, 110 S.W.3d 174, 176-77 (Tex.App.—San Antonio 2003, order)). Th'e court based this broad definition of a defect' in part on Texas Rules of Appellate • Procedure 44.3 and 44.4, noting that, “[t]hese rules reflect a strong interest in ensuring that a defendant’s right to appeal is not abridged due to ‘defects or irregularities’ which can be corrected.” Dears, 154 S.W.3d at 614; Tex. R. App. P. 44.3 (prohibiting dismissal of an appeal for formal defects or irregularities without a reasonable time to correct or amend); Tex. R. App. P. 44.4 .(prohibiting dismissal of an appeal if the trial court’s erroneous action or inaction prevents proper presentation of the case on appeal and the trial court can correct the error). The court further stated that Rules 37.1 and 34.5(c) provide “the framework for correcting defective certifications,” and “[n]either of those rules provide any time limitation to their use.” Id. at 614; see also Tex. R. App. P. 37.1, 34.5(c).

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Cite This Page — Counsel Stack

Bluebook (online)
493 S.W.3d 213, 2016 WL 2936401, 2016 Tex. App. LEXIS 5215, Counsel Stack Legal Research, https://law.counselstack.com/opinion/torres-v-state-texapp-2016.