                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


                                                 §
  LIZZET GANDERA,                                                No. 08-17-00112-CR
                                                 §
                         Appellant,                                  Appeal from
                                                 §
  v.                                                             205th District Court
                                                 §
  THE STATE OF TEXAS,                                         of El Paso County, Texas
                                                 §
                         Appellee.                              (TC # 20160D05174)
                                                 §


                                     OPINION ON MOTIONS

       Appellant, Lizzet Gandara, is appealing her conviction of possession of less than one gram

of cocaine. The State filed a motion to dismiss the appeal alleging that Gandara waived her right

to appeal as part of the plea bargain and she failed to obtain the consent of the State to appeal.

Finding that the waiver of the right to appeal made in the boilerplate plea papers is invalid, we

deny the State’s motion to dismiss.

                                      FACTUAL SUMMARY

       Gandara was charged by indictment with possession of less than one ounce of cocaine, a

state jail felony. The trial court denied Gandara’s motion to suppress following a hearing held on

February 24, 2017. On April 13, 2017, Gandara waived her right to a jury trial and entered a

negotiated plea of guilty in exchange for the State’s waiver of its right to a jury trial and its
recommendation for a Section 12.44(a)1 reduction of punishment to confinement for 180 days in

the El Paso County Detention Facility.

        The plea papers, admitted at the guilty plea as State’s Exhibit 1, consist of ten pages of

documents setting forth the various admonishments, notice to Gandara of her rights, the plea

agreement, Gandara’s judicial confession, her waiver of certain rights vital to the validity of the

guilty plea, and an acknowledgment by her attorney. In the section of the plea papers titled

“Recommendation for Punishment,” Gandara is informed that if the trial court followed the plea

bargain, she would be required to obtain the trial court’s permission to appeal any matter in the

case, except for those matters raised by written motion and ruled on before she entered her guilty

plea. Gandara signed the bottom of this page indicating that she had read this page and understood

its contents. The plea papers also include a document signed by Gandara titled, “Waiver of Rights,

Plea and Acknowledgement by the Defendant.” The pertinent portion of this document states:

                I have also been informed of my right to pursue a motion for new trial and/or
        appeal, including the right to appeal in the event of a subsequent adjudication of
        guilt after being placed on deferred adjudication community supervision or a
        revocation of regular community supervision, and that I may waive this right. After
        having consulted with my attorney, I do hereby voluntarily, knowingly and
        intelligently waive my right to pursue a motion for new trial or appeal. I further
        agree that any motion for new trial that I pursue shall not be effective without the
        express written consent of the State’s prosecuting attorney.

               I, the undersigned Defendant, acknowledge that I have read this page and
        understand its contents and sign it for the purposes stated above.

The plea papers also include a document titled, “Acknowledgment of Counsel” in which Gandara’s

attorney certified to the trial court that Gandara had “freely and voluntarily waived his or her rights

as set out above and I join with the Defendant in the waiver of these rights.”

        During the course of the guilty plea, the trial judge went over Gandara’s right to appeal as


1
  TEX.PENAL CODE ANN. § 12.44(a)(West 2011)(authorizing reduction of state jail felony punishment to Class A
misdemeanor punishment).

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set forth in the trial court’s written certification of the defendant’s right to appeal. The judge

informed Gandara that if he did not follow the plea bargain, she would be allowed to withdraw her

guilty plea, but if he followed it, then she could not appeal except for those matters raised by

written motion and ruled on before trial, or by permission of the court. The trial judge then

announced that he was going to follow the plea bargain, and he found Gandara guilty and assessed

her punishment in accordance with the plea agreement. Gandara’s attorney immediately stated

that Gandara intended to appeal the pre-trial ruling on the motion to suppress and he asked the trial

court to order her released on an appeal bond. The trial court granted that request and set the

appeal bond at $3,000. The State did not raise any objection to Gandara’s statement that she

intended to appeal, her request for an appeal bond, or the trial court’s order granting her an appeal

bond.

        Despite granting Gandara’s request for an appeal bond, the trial court made the following

written finding in the document titled, “Court’s Findings, Approval, and Order”: “. . . the

Defendant understands the consequences of waiving the right to file a motion for new trial and to

request permission to file an appeal, and the Defendant voluntarily, knowingly and intelligently

waived such rights.” The trial court signed this document on the day of the guilty plea, April 13,

2017. That same day, the trial court also signed the certification of the defendant’s right to appeal

indicating that it was a plea bargain case and Gandara did not have a right to appeal. Presumably

this is the same certification form which the trial court discussed with Gandara during the guilty

plea hearing. Two weeks later, the trial court signed a new certification indicating that it “is a

plea-bargain case, but matters were raised by written motion filed and ruled on before trial and not

withdrawn or waived, and the defendant has the right of appeal. . . .” The following day, Gandara

filed notice of appeal.



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                           PROPRIETY OF THE STATE’S MOTION

        Before addressing the merits of the State’s motion to dismiss, it is necessary consider

procedural matters raised by Gandara in her response and in her motion to strike the State’s brief.

Gandara initially argues that the State is not permitted to raise this argument by motion because it

is attempting to avoid filing a brief on the merits, and she insists that the State’s motion to dismiss

must be filed as its brief on the merits. Gandara’s accusation that the State’s motion is an attempt

to avoid filing its brief is baseless because the State timely filed its brief on the merits shortly after

filing the motion to dismiss.

        Citing Rule 10.1(a)(1), Gandara also argues that a motion cannot be filed unless a rule

permits the motion. Texas Rule of Appellate Procedure 10.1(a) addresses the contents of motions

filed in the appellate courts. TEX.R.APP.P. 10.1(a). The portion of the rule applicable to criminal

appeals states:

        (a) Motion. Unless these rules prescribe another form, a party must apply by
            motion for an order or other relief. The motion must:

            (1) contain or be accompanied by any matter specifically required by a rule
            governing such a motion;

            (2) state with particularity the grounds on which it is based;

            (3) set forth the order or relief sought;

            (4) be served and filed with any brief, affidavit, or other paper filed in support
            of the motion; . . . .

TEX.R.APP.P. 10.1(a).

        Rule 10.1(a)’s requirements are specifically aimed at addressing the contents of motions.

To that end, Rule 10.1(a)(1) simply instructs parties that a motion must contain anything that is

specifically required by another rule governing that particular type of motion. For example, Rule

42.4 permits the State to file a motion to dismiss an appeal if the appellant escaped from custody

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during the pendency of the appeal and the appellant has not voluntarily returned to custody within

ten days. See TEX.R.APP.P. 42.4. Such a motion must be supported by affidavit. See TEX.R.APP.P.

42.4(a). Under Rule 10.1(a)(1), the affidavit required by Rule 42.4(a) must accompany the motion

to dismiss. See TEX.R.APP.P. 10.1(a)(1), 42.4(a). Rule 10.1(a)(1) cannot reasonably be interpreted

as limiting motions filed in the appellate courts to only those expressly authorized by the Rules of

Appellate Procedure. If the Texas Supreme Court and Court of Criminal Appeals had intended to

enact a rule which limited the motions which could be filed in an appeal or original proceeding to

only those expressly authorized by the Rules of Appellate Procedure, they could have easily said

so. Under Gandara’s interpretation, a criminal defendant could not file a motion to dismiss a

State’s appeal for lack of jurisdiction because such a motion is not expressly authorized by the

Rules. We decline to construe Rule 10.1 in this manner.

       Gandara has also filed a motion to strike the State’s brief on the merits filed on December

14, 2017. Gandara argues that the State’s motion to dismiss should have been filed as the State’s

brief and the State should not be allowed to file what Gandara characterizes as a second brief. We

filed the State’s motion to dismiss as a motion for the reasons stated above. Thus, the State has

filed only one brief. Gandara’s motion to strike the State’s brief is denied.

                           WAIVER OF THE RIGHT TO APPEAL

       The State asserts that Gandara’s appeal must be dismissed because she waived the right to

appeal and she did not obtain the State’s consent to pursue the appeal. Thus, it asks for specific

performance of the plea bargain. Gandara responds that the waiver of the right to appeal included

in the boilerplate plea papers is invalid because the record shows that she never intended to waive

her right to appeal the suppression ruling.

       In a plea-bargained case, the defendant’s right to appeal is limited to (1) those matters



                                                -5-
raised by written motion and ruled on before trial; or (2) after getting the trial court’s permission

to appeal. See TEX.CODE CRIM.PROC.ANN. art. 44.02 (West 2006); TEX.R.APP.P. 25.2(a)(2).

Gandara is challenging the trial court’s denial of her motion to suppress as generally permitted

under Article 44.02 and Rule 25.2(a)(2). A criminal defendant in a non-capital case may waive

any of the rights secured him by law, including the right to appeal rulings on pre-trial motions, if

the waiver is made “voluntarily, knowingly, and intelligently.” See TEX.CODE CRIM.PROC.ANN.

art. 1.14(a) (West 2005); Marsh v. State, 444 S.W.3d 654, 660 (Tex.Crim.App. 2014); Ex parte

Broadway, 301 S.W.3d 694, 697 (Tex.Crim.App. 2009). A valid waiver of the right to appeal will

prevent a defendant from appealing without the consent of the trial court. Monreal v. State, 99

S.W.3d 615, 617 (Tex.Crim.App. 2003).

        A plea bargain or plea agreement is a contract between the State and the defendant, and

they are given great latitude in crafting the terms of the agreement. See Ex parte De Leon, 400

S.W.3d 83, 89 (Tex.Crim.App. 2013); State v. Moore, 240 S.W.3d 248, 251 (Tex.Crim.App.

2007). Once the trial court accepts the plea agreement, it becomes binding on the State and the

defendant and both parties are entitled to the benefit of the bargain. See Ex parte De Leon, 400

S.W.3d at 89; State v. Moore, 240 S.W.3d at 251. We apply general contract-law principles to

determine the intended content of a plea agreement. Ex parte De Leon, 400 S.W.3d at 89. In

determining the terms of the plea agreement, an appellate court must look to both the written

agreement and the formal record, and we will imply a term only when necessary to effectuate the

intention of the parties. Id.

        Gandara’s waiver of the right to appeal is included in the boilerplate plea papers. The

written plea agreement included in the plea papers does not specify that Gandara’s waiver of the

right to appeal is a term of the plea agreement. Consequently, we are required to examine the



                                                -6-
record of the guilty plea hearing to determine whether the parties intended for the waiver of the

right to appeal to be a binding term of the plea agreement. When the trial court inquired about the

existence of a plea bargain, the prosecutor stated: “Your Honor, the agreement is for a reduction

to a 12.44(a), to misdemeanor punishment for 180 days in the El Paso County Detention Facility.”

The prosecutor did not state that Gandara was waiving her right to appeal as part of the plea

agreement. The trial court discussed with Gandara her right to appeal in the context of a plea

bargain case, and informed her that if he did not follow the plea bargain, she would be allowed to

withdraw her guilty plea, but if he followed it, then she could not appeal except for those matters

raised by written motion and ruled on before trial, or by permission of the court. The trial court

made no mention of Gandara’s waiver of the right to appeal. The court’s explanation of Gandara’s

right to appeal is correct under Article 44.02 and Rule 25.2(a)(2), but it is inconsistent with the

waiver of the right to appeal signed by Gandara. The State did not object or otherwise bring to the

trial court’s attention that Gandara had waived her right to appeal as part of the plea agreement

and she would not be permitted to appeal unless she obtained the consent the State. As further

evidence that the parties did not intend for the boilerplate waiver of the right to appeal to be part

of the plea agreement, Gandara’s attorney informed the trial court that Gandara intended to appeal

the suppression ruling, and the trial court granted Gandara’s request to remain free on an appeal

bond during the pendency of the appeal. The State did not object when Gandara’s attorney gave

verbal notice of intent to appeal the suppression ruling or when the trial court granted Gandara’s

request for an appeal bond. As the Court of Criminal Appeals observed in Ex parte De Leon, the

State had an opportunity at the plea hearing to hold Gandara to the pre-printed waiver of appeal in

the plea papers, but it failed to do so. See Ex parte De Leon, 400 S.W.3d at 90.

       In light of all the evidence in the record, we conclude that Gandara’s boilerplate waiver of



                                                -7-
appeal was not an essential element of the plea agreement because: (1) waiver of appeal was not

an explicit term of the plea agreement; (2) the trial court made no mention of the waiver of appeal

when it discussed with Gandara her right to appeal; (3) Gandara, her attorney, and the trial court

evidenced an understanding that Gandara was reserving the right to appeal the suppression ruling;

and (4) the State did not object to the trial court’s explanation of Gandara’s right to appeal, to

Gandara’s verbal notice of appeal, or to the trial court’s order granting Gandara’s request for an

appeal bond. See Ex parte De Leon, 400 S.W.3d at 90 (holding that defendant’s waiver of right to

appeal contained in pre-printed form as not a binding element of plea agreement where the explicit

terms of the plea agreement did not address waiver of appeal as one of the terms, the defendant

was informed during the guilty plea that he had no right to appeal unless he was granted

permission, the prosecutor did not object to the court’s admonishment regarding the right to appeal,

and the trial court subsequently gave defendant permission to appeal). For these reasons, we find

that Gandara’s waiver of the right to appeal is invalid and unenforceable.

       We are aware that we upheld the validity of a similarly-worded waiver of the right to appeal

in Gomez v. State, No. 08-14-00007-CR, 2016 WL 3537407 (Tex.App.--El Paso May 31, 2016,

no pet.) and Miller v. State, No. 08-05-00341-CR, 2006 WL 430281 (Tex.App.--El Paso, Feb. 23,

2006, pet. ref’d). Each case is factually distinguishable because nothing in the record contradicted

the validity of the waivers of the right to appeal. In the instant case, Gandara’s statement of her

intent to appeal the suppression ruling and the trial court’s order granting Gandara’s request for an

appeal bond directly contradict the waiver of the right to appeal. Having found Gandara’s waiver

of the right of appeal to be invalid, we deny the State’s motion to dismiss the appeal.




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February 14, 2018
                                    ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)




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