Appeals Reinstated, Motions Disposed, Appeals Dismissed, and Majority and
Concurring Opinions filed January 28, 2020.




                                        In The

                     Fourteenth Court of Appeals

                                NO. 14-19-00380-CR
                                NO. 14-19-00381-CR

                    CARLOS MICHAEL LOPEZ, Appellant

                                          V.

                        THE STATE OF TEXAS, Appellee

                   On Appeal from the 262nd District Court
                             Harris County, Texas
                  Trial Court Cause Nos. 1564443 and 1564444

                                      OPINION

      Carlos Michael Lopez pleaded guilty to and was convicted of aggravated
assault against a public servant and aggravated assault with a deadly weapon. The
trial court sentenced him to 15 years’ imprisonment for each conviction. Despite the
trial court’s certification that appellant waived his right to appeal, appellant filed a
notice of appeal in each case. We conclude appellant validly waived his right to
appeal and dismiss these appeals for lack of jurisdiction.
                                     BACKGROUND

      Appellant pleaded guilty to aggravated assault against a public servant and
aggravated assault with a deadly weapon. No agreement regarding sentencing was
reached between appellant and the State; instead, a presentence investigation report
was prepared. Following a sentencing hearing, the trial court found appellant guilty
and sentenced him to 15 years’ imprisonment on each conviction, the sentences to
run concurrently. The trial court signed a certification of appellant’s right to appeal
in which it indicated appellant had waived his right of appeal. Appellant filed a pro
se notice of appeal. A few days later, the trial court appointed counsel to represent
appellant on appeal.

      The State filed a motion to dismiss for lack of jurisdiction. The motion states
appellant agreed to waive his right of appeal in exchange for the State’s waiver of
its right to a jury trial. Only by pleading guilty to the judge would appellant have
been eligible for deferred adjudication community supervision. Because appellant
wanted to preserve the possibility of deferred adjudication community supervision,
the motion contends, he bargained for that possibility by getting the State to waive
its right to a jury trial. In exchange, the State obtained appellant’s waiver of his right
to appeal.

      In response to the State’s motion to dismiss, appellant filed a “Motion to Strike
or Deny Appellee’s Non-Conforming Document.” Appellant asserts the only basis
on which the State may seek involuntary dismissal of a criminal case is the
appellant’s escape. See Tex. R. App. P. 42.4. Because the Texas Rules of Appellate
Procedure do not expressly permit the State to move for dismissal based on lack of
jurisdiction, appellant contends, we should strike the State’s motion to dismiss.
Alternatively, appellant argues the motion to dismiss should be denied because
(1) the trial court has now signed amended certifications indicating appellant has the

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right of appeal; and (2) the record does not support the existence of a negotiated
waiver.

       The State responded to the motion to strike at our request. It contends that rule
42.4 applies only to a “valid” appeal, and these appeals are not valid because they
fail to invoke our appellate jurisdiction. In any event, the State says, this court lacks
jurisdiction, and it does not matter whether we dismiss the appeals on the State’s
motion or our own motion.

                           ABATEMENT AND FINDINGS OF FACT

       The trial court originally certified that appellant had waived his right to appeal
either of his convictions. We sent a letter to the trial court stating (we now realize
mistakenly) that the records suggest appellant did not waive his right to appeal. In
response, the trial court filed amended certifications indicating that appellant both
had the right to appeal and waived his right to appeal. Due to the conflicting
certifications, we abated these appeals and directed the trial court to conduct a
hearing to make findings of fact as to whether appellant’s waivers of his right to
appeal were valid.1

       The trial court conducted the hearing and made findings of fact applicable to
both appeals. The findings include:

       1. Appellant waived his right to appeal in return for the State’s waiving its
          right to a jury trial.
       2. The original appellate records unambiguously showed that appellant
          waived his right to appeal.



1
 We abated these appeals for findings of fact due to the unique circumstances of these appeals—
namely, the conflicting certifications. We do not suggest that such a procedure would be necessary
or appropriate in every case in which jurisdiction is challenged, nor do we suggest a party would
be entitled to such a procedure in every case in which jurisdiction is challenged.
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      3. Nothing in the records conflict with the statement in the plea paperwork
         that appellant’s waiver of his right to appeal was part of a negotiated
         bargain with the State.

      4. “The State waived its right to a jury trial and [appellant] was put in a
         position where he was able to request deferred adjudication community
         supervision, which he did.”

      Following receipt of the trial court’s findings, we notified the parties we
would consider dismissal of these appeals on our own motion for lack of jurisdiction
due to appellant’s waiver of his right to appeal. We invited the parties to file further
briefing on the jurisdictional issue. No such briefing has been received.

                           WAIVER OF RIGHT TO APPEAL

      The right to appeal may be waived, and such a waiver is valid if made
voluntarily, knowingly, and intelligently. Carson v. State, 559 S.W.3d 489, 492–93
(Tex. Crim. App. 2018); Ex parte Delaney, 207 S.W.3d 794, 796-97 (Tex. Crim.
App. 2006); Simon v. State, 554 S.W.3d 257, 261 (Tex. App.—Houston [14th Dist.]
2018, no pet.); Jenkins v. State, 495 S.W.3d 347, 350 (Tex. App.—Houston [14th
Dist.] 2016, no pet.). A court of appeals lacks jurisdiction over and must dismiss an
appeal when the defendant has validly waived his right of appeal. See Jones v. State,
488 S.W.3d 801, 808 (Tex. Crim. App. 2016).

      A waiver of appeal prior to sentencing may be valid if it is bargained for—
that is, if the State gives some consideration for the waiver, even if a sentence is not
agreed upon. Ex parte Broadway, 301 S.W.3d 694, 699 (Tex. Crim. App. 2009);
Simon, 554 S.W.3d at 261; Jenkins, 495 S.W.3d at 350. On the other hand, a non-
negotiated waiver of the right to appeal is valid only if the defendant with certainty
knows the punishment that will be assessed. Washington v. State, 363 S.W.3d 589,
589-90 (Tex. Crim. App. 2012) (per curiam); Delaney, 207 S.W.3d at 798-99;
Simon, 554 S.W.3d at 261; Jenkins, 495 S.W.3d at 350.

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       To determine the validity of a waiver of a right to appeal and the terms of any
agreement between appellant and the State, we consider the written plea documents
and the formal record in light of general contract law principles. Jones, 488 S.W.3d
at 805; Ex parte De Leon, 400 S.W.3d 83, 89 (Tex. Crim. App. 2013); Simon, 554
S.W.3d at 261; Jenkins, 495 S.W.3d at 350.

       Like this case, Delaney and Broadway both involved the State’s waiver of its
right to a jury trial and appellant’s waiver of the right to appeal. In Delaney, the State
merely consented to a bench trial; there was no evidence in the record of a bargain
between the parties regarding a bench trial rather than a jury trial. See Delaney, 207
S.W.3d at 798. In Broadway, by contrast, the record did contain evidence of an
agreement between the parties. The defendant’s trial lawyer had submitted an
affidavit stating Broadway “waived his right to appeal to induce the State to consent
to the waiver of a jury trial.” Broadway, 301 S.W.3d at 695. The Court of Criminal
Appeals said the bargain was not a traditional plea-bargain agreement, in which the
guilty plea is made in exchange for a certain sentence, but rather “a bargain of a
different sort.” Id. at 697.

       We applied Delaney and Broadway as we considered whether the defendant’s
waiver of the right to appeal was valid in Jenkins and Simon. In each case, we held
that, just as in Delaney, there was no evidence that the State’s waiver of a jury trial
was made in exchange for the defendant’s waiver of his right to appeal. Jenkins, 495
S.W.3d at 352; Simon, 554 S.W.3d at 263.

       The facts of these appeals are more like Broadway than Delaney, Jenkins, and
Simon. A document entitled “WAIVER OF CONSTITUTIONAL RIGHTS,
AGREEMENT TO STIPULATE, AND JUDICIAL CONFESSION” is included in
each record. Each is dated January 15, 2019 and is signed by appellant. Each contains
the following paragraph:

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      I understand that I have not reached an agreement with the prosecutor
      as to punishment. However, in exchange for the State waiving their [sic]
      right to a jury trial, I intend to enter a plea of guilty without an agreed
      recommendation of punishment from the prosecutor and request that
      my punishment should be set by the Judge after a pre-sentence
      investigation report and hearing. I understand the state reserves the right
      to argue for full punishment at my sentencing hearing. I waive any
      further time to prepare for trial to which I or my attorney may be
      entitled. Further, in exchange for the state giving up their [sic] right
      to a jury trial, I agree to waive any right of appeal which I may
      have.

(Boldface added)

      That paragraph, particularly the bolded language, constitutes record evidence
that appellant’s waiver of his right to appeal was bargained for. The State gave
consideration for the waiver in the form of waiving its own right to a jury trial.
Broadway compels us to conclude appellant’s waiver of his right to appeal is valid.

      Accordingly, we dismiss these appeals for lack of jurisdiction. We deny as
moot the State’s motion to dismiss, appellant’s motion to strike the motion to
dismiss, and the State’s motion to extend time to file its brief.




                                        /s/       Margaret ‘Meg’ Poissant
                                                  Justice


Panel consists of Justices Christopher, Spain, and Poissant. Spain, J., concurring.

Publish — TEX. R. APP. P. 47.2(b).




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