                                                                                          ACCEPTED
                                                                                      05-17-01190-CR
                                                                            FIFTH COURT OF APPEALS
                                                                                      DALLAS, TEXAS
                                                                                    1/30/2018 5:33 PM
                                                                                           LISA MATZ
                                                                                               CLERK

                          Appeal No. 05-17-01189-CR
                          Appeal No. 05-17-01190-CR
                                                                     FILED IN
                                                              5th COURT OF APPEALS
                       IN THE COURT OF APPEALS                    DALLAS, TEXAS
                    FOR THE FIFTH DISTRICT OF TEXAS           1/30/2018 5:33:39 PM
                           AT DALLAS, TEXAS                         LISA MATZ
                                                                      Clerk


                         MICHAEL DEAN BICKLEY,
                                  Appellant

                                       vs.

                            THE STATE OF TEXAS,
                                    Appellee


                       On appeal from the 283rd Judicial
                     District Court of Dallas County, Texas
                     Trial Nos. F15-35146-T, F15-35147-T


                MOTION TO DETERMINE JURISDICTION


        The January 15, 2016 indictments charged Appellant with two counts of

bodily-injury injury to an elderly person. TEX. PENAL CODE § 22.04(a)(3). (CR1: 8,

46; CR2: 8, 39). The complainant in Trial No. F15-35146-T (Appeal No. 05-17-

01189-CR) was Ronnie Sanford, Appellant’s 75-year-old stepfather, and the

complainant in Trial No. F15-35147-T (Appeal No. 05-17-01190-CR) was Shirley

Sanford, Appellant’s 71-year-old mother. (CR1: 8; CR2: 39). Prior to
enhancement, the offenses were third-degree felonies.1 TEX. PENAL CODE §§

12.42(a), 22.04(f).

                                       Background

         On April 10, 2017, the State filed its “Notice of Special Plea of

Enhancement Paragraph,” alleging that Appellant was convicted of aggravated

assault with a deadly weapon in 2005 and of felony DWI in 2000. (CR1: 8, 28;

CR2: 8, 30). The State’s Notice of Enhancement did not allege whether the date of

commission of the aggravated assault was subsequent to the date of conviction for

the felony DWI. (CR1: 28; CR2: 30). See TEX. PENAL CODE § 12.42(d) (stating

that “the second previous felony conviction [must be] for an offense that occurred

subsequent to the first previous conviction having become final”).

         On or before September 15, 2017, the State motioned to strike its

allegations that Appellant was convicted in 2000 for committing felony DWI.

(CR1: 37; CR2: 55). The State’s motion was not file-stamped, but it was granted

on or before September 15, 2017. (CR1: 37; CR2: 55).

         On September 15, 2017, Appellant signed a “Plea Agreement” in both of

his cases. (CR1: 37; CR2: 57). The written plea agreements admonished Appellant




1
 The judgment in Trial No. F15-35147-T incorrectly stated the degree of offense was a second-
degree felony. (CR2: 8, 39, 55; RR3: 9). TEX. PENAL CODE §§ 12.42(a), 22.04(f).
                                             2
as to the range of punishment for a second-degree felony, stated that Appellant

entered an “Open Plea” under the portion entitled “State’s recommendation,” and

stated that Appellant pleaded true to the “first” enhancement paragraph, i.e.,

Appellant pleaded true only to being convicted of aggravated assault in 2005.

(CR1: 38-40; CR2: 57-60). Appellant signed a Judicial Confession in each case,

stating it was true that he committed one prior felony, the 2005 aggravated assault.

(CR1: 36; CR2: 54).

         The trial court noted on the docket sheets that it conducted the “[f]irst part

of open plea[s]” on September 15, 2017. (CR1: 6; CR2:6). In the proceedings on

September 15, 2017, Appellant pleaded guilty to committing the alleged offenses,

and he pleaded true to the allegation that he was convicted of aggravated assault in

2005.2 (CR1: 8, 36, 39-40; CR2: 8, 54; RR2: 1, 5-6). On October 6, 2017, the trial

court accepted Appellant’s pleas, and it imposed concurrent six-year sentences of

confinement in the Institutional Division. (CR1: 39-42; CR2: 57-60; RR3: 1, 9).

       The judgments indicated that Appellant pleaded guilty pursuant to plea

bargains. (CR1: 37-41, 40, 46, 63; CR2: 8, 39, 55, 61; RR2: 5, 61; RR3: 4, 9). The



2
  The judgment in Trial No. F15-35146-T incorrectly stated that Appellant pleaded true to a
second enhancement paragraph that was found to be true. (CR1: 37-41, 40, 46; RR2: 5, 61; RR3:
4, 9).


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trial judge indicated, at the September 15, 2017 hearing, that Appellant’s pleas

were negotiated, and Appellant thus waived his right to appeal, because the trial

court granted the State’s motion to strike the 2000 felony DWI from the

enhancement allegations.3 (RR2: 4-5). TEX. R. APP. P. 25.2(a)(2). The trial judge

believed that Appellant’s pleas were negotiated, even though there was no

indication from the “open plea” paperwork, or from his judicial confessions, that

Appellant would plead guilty in exchange for anything, and even though the trial

judge gave no admonishments regarding any “recommendation” by the State. See

footnote 3, supra, at 4; TEX. R. APP. P. 25.2(a)(2) (stating that a “plea bargain case”


3
    The record shows as follows at the beginning of the September 15, 2017 plea hearing:

         THE COURT:            So what are we doing?

         [PROSECUTOR]:         It’s not a trial, so.

         THE COURT:            Well, if he just pleads with no limitations on me, then it’s an open
                               plea and he can appeal it. But when you’re giving up, dropping a
                               paragraph, then I think he loses his appeal rights.

         [PROSECUTOR]:         All right.

         [TRIAL COUNSEL]: Can we still go open, your Honor? You still can give whatever
                          sentence you want.

         THE COURT:            He’s going to be stuck with it.

[TRIAL COUNSEL]:               Yes, sir. Oh, I understand. Yes, sir. (Sotto voce discussion between
                               defense attorney and defendant). My client does understand what
                               you are saying and he is in agreement.

(RR3: 5).
                                                       4
is a case where the punishment on a guilty plea “did not exceed the punishment

recommended by the prosecutor and agreed to by the defendant”).

      There was no formal agreement on the record at the September 15, 2017

hearing to reflect that the felony DWI enhancement count was dropped in

exchange for Appellant’s pleas of guilty and true to the aggravated assault

enhancement allegation, nor was the plea paperwork amended to so demonstrate.

(CR1: 38-40; CR2: 57-60; RR2: 4-5). See footnote 3, supra, at 4. On the other

hand, Appellant did not dispute the trial court’s conclusion that Appellant entered

his plea pursuant to a plea bargain; instead, Appellant’s stated that he wanted to

“still go open” as to the term of confinement. See footnote 3, supra, at 4.

Appellant did not waive his right to appeal in the plea paperwork, and he timely

filed his notices of appeal. (CR1: 38-40, 64; CR2: 57-61).

        The record in Trial No. F15-35147-T includes a “Trial Court’s

Certification of Defendant’s Right to Appeal,” with no cause number. (CR2: 56).

A crossed-out “X” was apparently entered next to the trial court’s certification that

“this” case was “not a plea-bargain case, and the defendant has the right of

appeal.” TEX. R. APP. P. 25.2(a)(2). (CR2: 56). A second “X” appears next to the

statement that “this” case “is a plea-bargained case, and the defendant has no right

of appeal.” (CR2: 56). The certification was dated as signed by the trial judge on

                                         5
“10/6/16,” i.e., on October 6, 2017, and again on “9/15/17,” the date when

Appellant was sentenced. (CR2: 56; RR3: 1). The certification was signed by trial

counsel and by Appellant on an unknown date. (CR2: 56).

                            Appellant’s Right to Appeal

        In the absence of a negotiated “recommendation” regarding punishment

that is followed by the trial court, pleas are considered to be non-negotiated. TEX.

R. APP. P. 25.2(a)(2). In Appellant’s case, the trial court correctly perceived that it

should not admonish Appellant about Appellant’s right to withdraw his plea if the

trial court rejected a recommendation, since there was no recommendation. TEX.

CODE CRIM. PROC. art. 26.13(a)(2). The trial court incorrectly believed that

Appellant’s open pleas, as shown in his plea paperwork, became negotiated pleas

when the trial court granted the State’s motion to strike one of the enhancement

counts. TEX. R. APP. P. 25.2(a)(2); see Ramirez v. State, 89 S.W.3d 222, 225-27,

225 n.5 (Tex. App. — Corpus Christi 2002, no pet.) (rejecting the State’s argument

that there was a negotiated plea when the trial court did not adjudicate the

enhancement paragraph since there was no record to show that “the State agreed to

drop the enhancement paragraph in exchange for [the defendant’s] guilty plea”).

Appellant’s arguable acquiescence at the hearing to the trial court’s belief that

Appellant waived his right to appeal should not be treated as a revision of

                                          6
Appellant’s plea, because no agreement was shown that Appellant was waiving his

rights in consideration for the State asking the trial court to strike one of the

enhancement allegations. See footnote 3, supra, at 4; Ex parte Moussazadeh, 64

S.W.3d 404, 412 (Tex. Crim. App. 2001) (stating that any finding that parole

eligibility formed an essential part of a plea agreement “must be founded upon the

express terms of the written plea agreement itself” or on “the formal record at the

plea hearing”). Moreover, since the record does not show that the State could have

established that Appellant committed the aggravated assault after the felony DWI

conviction became final, there would have been a failure of consideration for any

agreement to cap his confinement at 20 years by striking the felony DWI

allegation. TEX. PENAL CODE §§ 12.32, 12.33, 12.42(d); Ramirez, 89 S.W.3d at 225

n.5; Ortiz v. State, 885 S.W.2d 271, 273 (Tex. App. — Corpus Christi 1994), aff’d,

933 S.W.2d 102 (Tex. Crim. App.1996) (stating that plea agreements are contracts

that require “consideration” to be “exchanged”).

                                       Remedy

        This Court should find that it has jurisdiction to entertain Appellant’s

appeals, grant Appellant leave to obtain new certifications, and direct the trial court

to certify that Appellant has the right to appeal in both of his cases. TEX. R. APP. P.

25.2(a)(2), 25.2(d), 25.2(f); 34.5(c), 37, 44.3, 44.4. In the alternative, this Court

                                          7
should abate the appeals with orders for the trial court to make findings of fact

regarding the determination about whether Appellant has the right to appeal his

convictions, and make such determinations, but with Appellant being granted leave

to renew his challenge in this Court to the absence of certifications that he has the

right to appeal.    TEX. R. APP. P. 25.2(a)(2), 25.2(f), 34.5, 37.1, 44.3, 44.4.

Appellant further prays for appropriate time to file his Brief for Appellant after

resolution of the jurisdiction question.

        For the reasons shown, Appellant respectfully requests the requested relief

and any other relief to which he would be entitled under terms deemed appropriate

by this Court.

                                                    Respectfully submitted,


                                                    /s/ Christian T. Souza
Lynn Richardson                                     Christian T. Souza
Chief Public Defender                               Assistant Public Defender
Dallas County, Texas                                State Bar No. 00785414
                                                    Frank Crowley Courts Building
                                                    133 N. Riverfront Blvd., LB-2
Michael R. Casillas                                 Dallas, Texas 75207-4399
Chief, Appellate Division                           (214) 653-3550 (telephone)
Dallas County Public Defender’s Office              (214) 875-2363 (fax)
                                                    Christian.souza@dallascounty.org




                                           8
                        CERTIFICATE OF SERVICE

       I hereby certify that a true copy of the foregoing motion was served on the
Dallas County Criminal District Attorney’s Office (Appellate Division), 133 N.
Riverfront Blvd., 10th Floor, Dallas, Texas 75207, by eServe and/or by electronic
mail to dcdaappeals@dallascounty.org.

                                                  /s/ Christian T. Souza
                                                  Christian T. Souza




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