Washington, Billie Dean

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-0685-11

BILLIE DEAN WASHINGTON, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW FROM THE FIRST COURT OF APPEALS HARRIS COUNTY

P ER CURIAM. K ELLER, P.J., filed a concurring opinion. A LCALA, J., did not participate.

OPINION

Billie Dean Washington pleaded guilty to sexual assault of a child. Pursuant to a plea

bargain, he was placed on deferred adjudication for ten years. The State moved to adjudicate

guilt, and Washington pleaded true to the allegations. Without an agreed recommendation

for punishment and before sentencing, Washington waived his right to appeal in a written

stipulation of evidence. The trial judge found Washington guilty and sentenced him to

twenty years’ confinement and a fine of $10,000. Washington - page 2

The First Court of Appeals dismissed Washington’s pro se appeal for want of

jurisdiction, noting that Washington’s waiver supported the trial judge’s certification that

Washington waived his right to appeal.1 But when a defendant waives his right to appeal

before sentencing and without an agreement on punishment, the waiver is not valid.2 And

contrary to the State’s assertion, the record does not confirm that the State gave any

consideration for Washington’s waiver.3 So, on this record, Washington’s waiver was not

valid.4 We reverse the judgment of the court of appeals and remand this case to the court of

appeals for proceedings consistent with this opinion.

DATE DELIVERED: April 4, 2012 PUBLISH

1 Washington v. State, No. 01-11-00093-CR, 2011 Tex. App. LEXIS 2449, at *1 (Tex. App.—Houston [1st Dist.] Mar. 31, 2011, pet. granted) (mem. op., not designated for publication) (citing T EX. R. A PP. P. 25.2(d)). 2 Ex parte Delaney, 207 S.W.3d 794, 799 (Tex. Crim. App. 2006). 3 Cf. Ex parte Broadway, 301 S.W.3d 694, 697–98 & n.7 (Tex. Crim. App. 2009) (distinguishing Delaney because the record supported that the State gave consideration for applicant’s waiver of appeal). 4 See Ex parte Delaney, 207 S.W.3d at 799; see also Dears v. State, 154 S.W.3d 610, 614–15 (Tex. Crim. App. 2005) (requiring courts of appeals to review the record, if it has been filed, to determine whether the certification is defective).