Order issued August 18, 2020




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-18-00378-CR
                           ———————————
                    ANTONIO FIDEL GARCIA, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 185th District Court
                           Harris County, Texas
                       Trial Court Case No. 1527904


                          MEMORANDUM ORDER

      Antonio Fidel Garcia pleaded guilty to possession of between 4 and 200

grams of cocaine and pleaded true to an enhancement. After a punishment hearing,

the trial court sentenced him to 50 years’ imprisonment. On appeal, he argues that

he received ineffective assistance of counsel because his counsel did not present
his motion for new trial to the court and failed to attach a signed, sworn affidavit.

He argues that this error forfeited a hearing on his motion for new trial and

amounted to constructive denial of effective assistance of counsel during a critical

stage of the proceeding.

      The trial court certified that Garcia had a right to appeal. After reviewing the

record, we conclude that the certification in the record stating that the trial court

granted Garcia permission to appeal is erroneous, and we do not have jurisdiction

to consider the appeal. We order the trial court to amend the certification.

                                    Background

      Garcia was in possession of 120 grams of cocaine when stopped for a traffic

violation. He was charged by indictment with possession with intent to deliver

between 4 and 200 grams of cocaine. The indictment alleged an enhancement

based on a previous felony conviction. Garcia also had a pending murder charge.

He proceeded to trial on the drug case, and while the jury was deliberating, he

pleaded guilty to possession of between 4 and 200 grams of cocaine and the

punishment enhancement. There was no punishment agreement.

      At the punishment hearing, the State presented evidence of his prior

convictions and other extraneous offenses and conduct, including the murder. The

trial court sentenced Garcia to 50 years’ imprisonment.




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       Trial counsel filed a notice of appeal and moved to withdraw in April 2018.

The trial court granted the motion to withdraw but did not appoint appellate

counsel. Garcia hired a new attorney who filed a motion for new trial before the

period for filing such motions closed. The motion was overruled by operation of

law.

       Counsel did not file an appellate brief on behalf of Garcia. In January 2019,

this court abated the appeal and remanded to the trial court for an evidentiary

hearing to determine whether appellate counsel had abandoned the appeal by

failing to file a brief, whether appellant was indigent, and, if initial appellate

counsel had not abandoned the appeal, to make appropriate findings as to why

counsel did not file a brief and set a date for filing it. The trial court permitted the

attorney to withdraw and appointed new representation for Mr. Garcia on appeal.

This court lifted the abatement and reinstated the appeal.

                                     Jurisdiction

       Preliminarily, the State argues that we do not have jurisdiction to hear

Garcia’s appeal. The State argues that the certification documents in the record are

incorrect and that the record reflects that Garcia waived his right to appeal.

A.     Standard of Review

       Jurisdiction must be expressly given to the courts of appeals in a statute.

Ragston v. State, 424 S.W.3d 49, 52 (Tex. Crim. App. 2014). The standard for



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determining jurisdiction is not whether the appeal is precluded by law, but whether

the appeal is authorized by law. Id.

B.    Law

      The Texas Rules of Appellate Procedure require the trial court to certify the

defendant’s right of appeal in every case in which it enters a judgment of guilt or

appealable order. TEX. R. APP. P. 25.2(a)(2). The certification becomes part of the

trial court record. Id. 25.2(d). The proper form for Certification of Defendant’s

Right of Appeal is contained in Appendix D of the supplement to the Texas Rules

of Appellate Procedure.* The choices on the form include the following:

         • not a plea-bargain case and the defendant has the right of
           appeal;

         • a plea-bargain case in which the defendant has the right of
           appeal because matters were raised by a written motion filed
           and ruled on before trial and not withdrawn or waived;

         • a plea-bargain case in which the defendant has the right to
           appeal because the trial court has given permission to appeal;

         • a plea-bargain case in which the defendant has no right of
           appeal;

         • or a case in which the defendant waived his right of appeal.

      Rule 25.2(a)(2) specifies that in a plea-bargain case in which the punishment

did not exceed the punishment recommended by the prosecutor and agreed to by

*
      Court of Criminal Appeals, Practice Before the Court - Forms,
      https://www.txcourts.gov/media/1442928/certification-of-defendants-right-of-
      appeal-rev-2018.pdf (last visited July 2, 2020).

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the defendant, a defendant may appeal only matters that were raised by written

motion filed and ruled on before trial or after receiving the trial court’s permission

to appeal. TEX. R. APP. P. 25.2(a)(2).

      An appellate court must review the record to determine if the certification is

defective. Jones v. State, 488 S.W.3d 801, 805 (Tex. Crim. App. 2016). A

certification that is correct in form but inaccurate when compared to the record is

defective. Id. at 804–05. When a certification has a defect or omission, it may be

amended under certain circumstances. TEX. R. APP. P. 25.2(f). After the appellant’s

brief is filed, the certification may only be amended on leave of the appellate court

and on such terms as the court may prescribe. Id.

C.    Analysis

      We first determine whether Garcia waived his right to appeal. The right to

appeal may be waived, and such a waiver is valid if made voluntarily, knowingly,

and intelligently. Ex parte Delaney, 207 S.W.3d 794, 796–97 (Tex. Crim. App.

2006). 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, 698–99 (Tex. Crim. App.

2009). 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




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documents and the formal record in light of general contract principles. See Jones,

488 S.W.3d at 805; Ex parte De Leon, 400 S.W.3d 83, 89 (Tex. Crim. App. 2013).

      Garcia pleaded guilty pursuant to a charge bargain. A charge bargain is a

type of plea bargain that 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. Thomas

v. State, 516 S.W.3d 498, 502 (Tex. Crim. App. 2017). An 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 was not dismissed.

Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003).

      The record shows that Garcia agreed to plead guilty to possession, which is a

second-degree felony, and waive his right to a jury trial and his right of appeal.

TEX. HEALTH & SAFETY CODE § 481.115(d) (possession of between 4 and 200

grams is a second-degree felony). In exchange, the State agreed to abandon the

possession with intent to deliver charge, which had a mandatory minimum

sentence of 15 years’ imprisonment. Garcia’s plea allowed him to avoid a

minimum punishment of 15 years in prison if he was found guilty of a first-degree

felony. See Jones, 488 S.W.3d at 807. As a second-degree felony, the range of

punishment for the possession charge was between two and twenty years, but with

the alleged enhancement, the range of punishment increased to 5 to 99 years or



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life. TEX. PENAL CODE §§ 12.42(b), 12.32(a). Since Garcia’s plea was made

pursuant to a charge bargain, his appeal is subject to the requirements for appeals

in plea-bargain cases. See Thomas, 516 S.W.3d at 502 (stating that agreement to

forgo prosecution for a pending charge in exchange for a plea to a lesser offense

effectively places a cap on the possible punishment and is a plea bargain for

purposes of Rule 25.2).

      Because this is a charge-bargain case, Garcia may: (1) appeal matters raised

by written motion and ruled on before trial; (2) appeal after receiving the trial

court’s permission to do so; or (3) appeal when authorized by statute. TEX. R. APP.

P. 25.2(a)(2); see TEX. CODE CRIM. PROC. art. 44.02; Thomas, 516 S.W.3d at 502.

      Having determined that Garcia pleaded guilty pursuant to a charge bargain

and validly waived his right of appeal, we review the certifications to ensure they

conform to the record. The trial court signed two certifications of defendant’s right

of appeal. The first, dated March 28, 2018, has a checkmark next to the line “is a

plea-bargain case, but the trial court has given permission to appeal and the

defendant has the right of appeal.” The second certification, signed April 24, 2018,

has a checkmark next to the line “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 to appeal.” The second certification was signed after the




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notice of appeal was filed. Both certifications are signed by Garcia and his trial

counsel.

      Garcia does not appeal any pretrial motions, and he does not argue that he

has a statutory right to appeal. Therefore, we have jurisdiction to review the appeal

only if the trial court gave Garcia permission to do so. TEX. R. APP. P. 25.2(a)(2).

We review the record to determine if the first certification, giving that permission,

is supported by the record.

      The State argues that the first certification is contrary to the record because

the trial judge did not give Garcia permission to appeal. Garcia signed a Waiver of

Constitutional Rights, Agreement to Stipulate, and Judicial Confession in the

possession case, in which he confessed that the allegations against him are true.

That document states: “I intend to enter a plea of guilty and the prosecutor will

recommend that my punishment should be set at PSI [presentence investigation

hearing] and I agree to that recommendation. . . . I waive any right of appeal which

I may have should the court accept the foregoing plea bargain agreement between

myself and the prosecutor.” The Advice of Defendant’s Right to Appeal signed by

Garcia states: “If you waived or gave up your right to appeal, you cannot appeal

your conviction.” The judgment signed by the trial court states, “APPEAL

WAIVED. NO PERMISSION TO APPEAL GRANTED.”




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      Besides the documents signed by Garcia waiving his right to a jury trial and

right of appeal, the record contains a document signed by the prosecutor indicating

the State’s agreement to abandon the possession with intent to deliver charge with

the understanding that Garcia would plead guilty without an agreed sentencing

recommendation to a possession charge. Garcia’s trial counsel stated on the record

that the State was reducing the charge and dismissing the murder charge in

exchange for his plea. The record reflects that in confirming whether he understood

his plea, the trial court informed Garcia that he “would have only a very limited

right to appeal [his] case.” The record does not reflect that the trial court gave

Garcia permission to appeal.

      The certification stating that the trial court gave Garcia permission to appeal

is contrary to the record. Where the record affirmatively shows no right of appeal,

we must order the trial court to amend the certification to correct the defect in the

certification and give both parties advance notice of our intent to dismiss the

appeal. TEX. R. APP. P. 44.3, 44.4; Menjivar v. State, 264 S.W.3d 137, 142, (Tex.

App.—Houston [1st Dist.] 2007, no pet.).




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                                     Conclusion

      We notify all parties that our review of the record indicates that the

certification giving Garcia permission to appeal is defective, and we lack

jurisdiction to review the appeal. We order the trial court to correct the defective

certification within 30 days from the date of this order.




                                                Peter Kelly
                                                Justice

Panel consists of Chief Justice Radack and Justices Kelly and Goodman.

Do not publish. TEX. R. APP. P. 47.2(b).




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