            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                    NO. PD-1318-08



                    MICHAEL PATRICK KENNEDY, Appellant

                                            v.

                               THE STATE OF TEXAS

          ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE THIRD COURT OF APPEALS
                           COMAL COUNTY

       K EASLER, J., delivered the opinion for a unanimous Court.

                                     OPINION

       The Austin Court of Appeals held that Michael Patrick Kennedy had no right to

appeal the trial judge’s decision to deny part of his suppression motion under the standard

for open-plea cases announced in Young v. State.1 We conclude that this is a charge-bargain

case; therefore, Kennedy has the right to appeal under Texas Rule of Appellate Procedure




      1
        Kennedy v. State, 262 S.W.3d 454, 457-58 (Tex. App.—Austin 2008) (citing
Young v. State, 8 S.W.3d 656 (Tex. Crim. App. 2000)).
                                                                             KENNEDY—2

25.2(a)(2), as interpreted in Shankle v. State.2

                                        Background

       Kennedy was charged with attempted capital murder and deadly conduct. Before trial,

Kennedy moved to suppress evidence seized from his property. After hearing testimony and

the parties’ arguments at the pretrial suppression hearing, the trial judge granted Kennedy’s

motion in part and denied it in part. Immediately after this, Kennedy pled guilty to the

offense of aggravated assault on a peace officer with a deadly weapon. In admonishing

Kennedy, the trial judge said, “This is an open plea with no recommendation. And the range

of punishment is not more than 99 years or life, nor less than five years in the Institutional

Division of the Texas Department of Criminal Justice; and in addition to that, a fine not to

exceed $10,000.” The trial judge and the parties then referred to a plea agreement:

       THE COURT:                   Okay. And is that part of your agreement, that
                                    there was a deadly weapon used. And counsel
                                    have you gone over with your client the effect of
                                    pleading true to a deadly weapon?
       DEFENSE COUNSEL:             Yes, Your Honor. Your Honor, in that regard it is
                                    an open plea, but we remind the Court pursuant to
                                    our agreement with counsel for the State that this
                                    is a contingent plea subject to our right to appeal
                                    the motion – – the Court’s ruling on our motion to
                                    suppress.
       THE COURT:                   And also – –
       PROSECUTOR:                  It’s understood by the State.
       THE COURT:                   And it’s also understood, at least by the Court
                                    from an off-the-record discussion, that in
                                    exchange for this plea of guilty and true to a


       2
           119 S.W.3d 808 (Tex. Crim. App. 2003).
                                                                               KENNEDY—3

                                    deadly weapon, that the other two cases will be
                                    dismissed upon punishment; is that correct?
       PROSECUTOR:                  Yes, sir.
       DEFENSE COUNSEL:             That is correct. Your Honor, I would tender to
                                    the Court at this time the certification of our right
                                    to appeal for purposes of the hearing.

The trial judge accepted Kennedy’s plea and explained:

       You do understand that except for certain matters, pretrial motions that have
       been filed and ruled on by the Court – – and to my knowledge that is just the
       hearing we have had today. But subject to that, you have waived any and all
       rights to appeal, including your motion to bring a motion for a new trial before
       this Court?

Kennedy’s defense attorney acknowledged that Kennedy understood this admonishment.

The trial judge then accepted Kennedy’s guilty plea, and after holding a punishment hearing,

the judge sentenced Kennedy to seventy-five years’ confinement. The trial judge certified

Kennedy’s right to appeal, stating that this

       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[; and]
       is a plea-bargain case, but the trial court has given permission to appeal, and
       the defendant has the right to appeal.

                                     Court of Appeals

       Kennedy appealed the trial judge’s partial denial of his suppression motion to the

Austin Court of Appeals.3 Although neither party mentioned waiver, the court held that

Kennedy waived his right to appeal his first four grounds of error, which challenged the




       3
           Id. at 457.
                                                                              KENNEDY—4

ruling on the motion to suppress, by pleading guilty.4 The court began its discussion by

setting out the rule we established in Young v. State:5 In open-plea cases,

       Whether entered with or without an agreed recommendation of punishment by
       the State, a valid plea of guilty or nolo contendere “waives” or forfeits the
       right to appeal a claim of error only when the judgment of guilt was rendered
       independent of, and is not supported by, the error.

The court then looked to how other courts of appeals have interpreted this holding.6 It

concluded that a defendant may appeal an erroneous ruling after pleading guilty only when

there is a direct nexus between the error and the judgment of guilt.7 The court determined

that there was no direct nexus in this case because: (1) none of the evidence that the judge

ruled was admissible established any of the elements of the offense that Kennedy pled guilty

to and (2) the judgment was supported by other evidence.8

                         Kennedy’s Petition for Discretionary Review

       Kennedy petitioned us for discretionary review. He contends that the court of appeals

improperly employed nothing more than a legal-sufficiency-of-the-evidence review by

narrowly focusing on whether the elements of the offense could have been established

without the evidence sought to be suppressed. He argues that this approach is contrary to the


       4
           Id. at 457.
       5
           Id. at 458 (quoting Young, 8 S.W.3d at 666-67).
       6
           Id. at 458-59.
       7
           Id. at 458.
       8
           Id. at 459-60.
                                                                               KENNEDY—5

policy and precedent we relied on in Young. The State concedes that the court of appeals

erred in holding that Kennedy waived his right to appeal. Both parties ask us to remand the

case to the court of appeals to consider the merits of Kennedy’s claim that the trial judge

erred in denying his motion to suppress.

                                   Analysis and Resolution

       The court of appeals and the parties erred to ignore Rule 25.2(a)(2). Because this is

a charge-bargain case, Kennedy had the right to appeal under Texas Rule of Appellate

Procedure 25.2(a)(2), as interpreted in our decision in Shankle v. State.9

       Rule 25.2(a)(2) governs the right to appeal in negotiated plea cases:

       In a plea bargain case--that is, a case in which a defendant’s plea was guilty or
       nolo contendere and the punishment did not exceed the punishment
       recommended by the prosecutor and agreed to by the defendant--a defendant
       may appeal only:
       (A) those matters that were raised by written motion filed and ruled on before
       trial, or
       (B) after getting the trial court’s permission to appeal.10

       In Shankle, we interpreted the meaning of Rule 25.2(a)(2)’s text “punishment

recommended by the prosecutor and agreed to by the defendant.” In that case, Shankle was

charged with aggravated sexual assault of a child and burglary of a habitation.11 The State

filed a plea disclosure in the sexual assault case, which stated that, in exchange for Shankle’s



       9
            119 S.W.3d 808 (Tex. Crim. App. 2003).
       10
            T EX. R. A PP. P. 25.2(a)(2) (Vernon Supp. 2009).
       11
            Id.
                                                                               KENNEDY—6

guilty plea, the State would not prosecute Shankle for burglary of a habitation.12 The

disclosure also stated that sentencing would be left within the discretion of the trial judge.13

Shankle pled guilty to aggravated sexual assault and, at the same time, admitted that he

committed the burglary of a habitation offense.14 The case was reset for sentencing.15 After

the trial judge heard testimony at the sentencing hearing, the judge stated that the burglary

offense would be taken into account when assessing Shankle’s punishment for the aggravated

sexual assault case.16 The trial judge then sentenced Shankle to forty years’ imprisonment.17

Shankle appealed, contending that the trial judge erred by failing to admonish him that he

would be required to register as a sex offender.18

       The Austin Court of Appeals held that Shankle’s notice of appeal invoked its

jurisdiction and that the trial judge’s failure to admonish Shankle about registering as a sex

offender was reversible error.19 We granted review of both the court’s holdings.20 In


       12
            Id.
       13
            Id.
       14
            Id.
       15
            Id.
       16
            Id. at 809-10.
       17
            Id. at 810.
       18
            Id.
       19
            Id.
       20
            Id.
                                                                            KENNEDY—7

reviewing the court’s first holding under Rule 25.2(a)(2), we made the following inquiry:

“The prosecutor and [Shankle] entered into a plea-bargain agreement, but was it an

agreement by which the prosecutor recommended, and [Shankle] agreed to, ‘punishment’?”

We held that it was because “charge-bargaining affects punishment.” 21 Explaining the

concept of charge-bargaining, we said that it “involves questions of whether a defendant will

plead guilty to the offense that has been alleged or to a lesser or related offense, and of

whether the prosecutor will dismiss, or refrain from bringing, other charges.” 22 Continuing,

we recognized that “[a]n agreement to dismiss a pending charge, or not to bring an available

charge, effectively puts a cap on punishment at the maximum sentence for the charge that is

not dismissed.” 23 We then held that the court of appeals erred when it addressed Shankle’s

sex-offender admonishment complaint on appeal because Shankle had no right to appeal

under Rule 25.2(a)(2); the forty years’ of imprisonment assessed did not exceed the

punishment recommended by the prosecutor and agreed to by Shankle.24

       The court of appeals and the parties in this case incorrectly assumed that Kennedy’s

right to appeal was not governed by Rule 25.2(a)(2), presumably because the plea papers are

titled, “open plea.” However, the record in this case shows that the State and Kennedy



       21
            Id. at 812.
       22
            Id. at 813.
       23
            Id.
       24
            Id. at 814.
                                                                            KENNEDY—8

entered into a charge-bargain agreement. The agreement provided that Kennedy would plead

guilty to aggravated assault on a peace officer with a deadly weapon in exchange for a

dismissal of the attempted capital murder and deadly conduct charges. Sentencing was left

to the discretion of the trial judge. As in Shankle, the charge-bargain agreement effectively

capped Shankle’s punishment to the applicable punishment range for the agreed-upon

offense.   Before the agreement, Kennedy was subject to two separate, additional

punishments. The first was for attempted capital murder, a first-degree felony that carried

a punishment range of imprisonment for life or for any term of no more than ninety-nine

years or less than five years in addition to a fine not to exceed $10,000. The second was for

deadly conduct, a third-degree felony offense that carried a punishment range of no more

than ten years or less than two years in addition to a fine not to exceed $10,000. Under the

plea-bargain agreement, Kennedy was subject to a single punishment for a first degree felony

offense. This is a similar situation to that which we addressed in Shankle. Because Rule

25.2(a)(2) applies to charge-bargain cases, Kennedy has the right to appeal the trial judge’s

ruling denying part of his suppression motion. We reverse the Austin Court of Appeals’s

judgment and remand this case to that court to consider Kennedy’s points of error that

concern the trial judge’s ruling on his suppression motion.




DATE DELIVERED: October 21, 2009
PUBLISH
