


 
IN THE
TENTH COURT OF
APPEALS










 

No. 10-03-00158-CR
 
Robert Earl Warrick, Jr.,
                                                                      Appellant
 v.
 
The State of Texas,
                                                                      Appellee
 
 
 

From the 177th District Court
Harris County, Texas
Trial Court # 911,447
 

Dissenting Opinion

 




      In
refusing to follow our precedent, the majority frustrates the purposes of the
Texas Rules of Appellate Procedure.  I
respectfully dissent.
      The
extent to which the majority refuses to follow our only recently-established
precedent is astounding.  Virtually yesterday, a majority of the
Court held that a certification of the defendant’s rights of appeal that
contradicted the appellate record is “‘defective’ if it is contrary to the
record.”  See Harris v. State, ___ S.W.3d ___, No. 10-03-00258-CR, 2004 Tex.
App. LEXIS 4366 (Tex. App.—Waco
May
 12, 2004, order) (per
curiam) (quoting Tex. R. App. P.
37.1); see Tex. R. App. P. 25.2(d). 
I dissented to that order, and would not have overruled our previous
precedent, by which we took the certification of the defendant’s rights of
appeal “at face value.”  See Harris, ___ S.W.3d at ___, 2004 Tex.
App. LEXIS at *5 (Gray, C.J., dissenting); Walker
v. State, 110 S.W.3d 509, 510 (Tex. App.—Waco 2003, no pet.).  But I refuse to ignore our precedent, even
the precedent with which I disagree.
      Courts “follow the doctrine of stare decisis to
promote judicial efficiency and consistency, encourage reliance on judicial
decisions, and contribute to the integrity of the judicial process.”  Carroll
v. State, 101 S.W.3d 454, 459 (Tex. Crim. App. 2003) (quoting Paulson v. State, 28 S.W.3d 570, 571
(Tex. Crim. App. 2000)).  In the context
of stare decisis, it is often “better
to be consistent than right.”  See Robbins v. State, 88 S.W.3d 256, 261
(Tex. Crim. App. 2002) (quoting Awadelkarien
v. State, 974 S.W.2d 721, 725 (Tex. Crim. App. 1998)).  A court may overrule a previous decision if
it “was poorly reasoned or unworkable.”  Carroll at 459 (quoting Paulson at 571).  If a court establishes a rule, as a lawyer I
always thought it was the court’s duty to follow that rule, or to overrule it
and explain why the court was changing the rule and not following stare decisis.  As a judge, that is the fundamental principle
by which I have tried to decide cases: even if I do not like the precedent,
unless there is good reason to overrule it, I have tried to follow it.
      This case presents an example of the majority’s
result-oriented approach.  The Court of Criminal Appeals has
established the procedure for bringing appeals of plea-bargained cases.  See
Tex. R. App. P. 25.2(d),
(f).  By that procedure, an “appeal must
be dismissed if a certification that shows the defendant has the right of
appeal has not been made part of the record.” 
Id. 25.2(d). 
The procedure also provides for several means of correcting defects in
the certification.  See id. 25.2(f).  In Walker, this Court unanimously held, through then–Chief
Justice Davis, that a certification of the defendant’s rights
of appeal was not defective by virtue of stating that the defendant did not
have the right of appeal.  Walker, 110 S.W.3d at 510.  In Harris,
a majority of the Court engaged in a sua
sponte review of the correctness of that procedure, and overruled Walker, without any suggestion that the Walker rule was poorly reasoned or unworkable.  See
Harris, ___ S.W.3d at ___, 2004 Tex. App. LEXIS 4366, at *2-*4.  The majority has now determined that if the
trial court does not file a correct certification that the defendant has the
right of appeal, then we must abate the cause for the entry of an amended
certification.  Id., ___ S.W.3d at ___, 2004 Tex. App. LEXIS 4366, at *3-*4.
      But in this case, when the same defect, a
certification belied by the record, is present, the majority simply ignores its
precedent and reaches the merits of the appeal. 
The trial court’s certification states that this “is not a plea-bargain
case, and the defendant has the right of appeal.”  Yet the record shows that this is a
plea-bargain case, and thus that Appellant has no right of appeal.  In Appellant’s written plea of guilty, he
states, “I intend to enter a plea of guilty and the prosecutor will recommend
that my punishment be set at PSI, State agrees to cap punishment at 10 years
TDC ” [sic].[1] 
Appellant marked through the waiver of presentence investigation, and
did not waive a presentence investigation. 
Appellant, his attorney, the attorney for the State, and the trial judge
all signed Appellant’s plea.  The trial
judge stated on the record at Appellant’s guilty plea hearing, “Even though the
range of punishment is 2 to 20, [the State is] agreeing to cap this at 10
years.”  The court ordered a presentence
investigation.  After receiving the
report of the presentence investigation, the court sentenced Appellant to ten
years’ imprisonment.  In its judgment,
the court recited the “terms of plea bargain”:
NO AGREED REC—PSI
STATE AGREES TO CAP
PUNISHMENT AT 10 YEARS TDC
Yet the trial court’s certification of
Appellant’s rights of appeal states, “this criminal case . . . is not
a plea-bargain case, and the defendant has the right of appeal.”
      The
Rules of Appellate Procedure provide:
In a plea bargain case—that is, a
case in which defendant’s plea is 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.
Tex. R. App. P. 25.2(a)(2); see Cooper v. State, 45 S.W.3d 77, 79-80 (Tex. Crim. App. 2001); Shankle v. State, 119 S.W.3d 808, 813-14
(Tex. Crim. App. 2003); Waters v. State, 124
S.W.3d 825, 826 (Tex. App.—Houston [14th Dist.] 2003, no pet.).  An agreement to a punishment cap constitutes
a plea bargain.  Shankle at 813; Waters at
826.  The purpose of Rule 25.2 is to
prevent meritless appeals by defendants who have received the benefit of their
plea bargains.  See Shankle at 810-13; Cooper
at 79-80.
      Here,
the State agreed that the court would order a presentence investigation and
that punishment would be capped at ten years’ imprisonment.  The trial court ordered a presentence
investigation and sentenced Appellant to ten years’ imprisonment.  The court did not grant Appellant permission
to appeal.  Accordingly, Appellant does
not have the right of appeal, and the trial court’s certification of
Appellant’s rights of appeal is “in error.” 
See Harris, ___ S.W.3d at ___,
2004 Tex. App. LEXIS 4366, at *4.
      Interpreting
the former Rule 25.2, the Court of Criminal Appeals has held that the appellant’s
allegations that would take an appeal outside of the limitations on
plea-bargain cases “must be true and supported by the record.”  Woods
v. State, 108 S.W.3d 314, 316 (Tex. Crim. App. 2003) (interpreting Tex. R. App. P. 25.2(b)(3), 60 Tex. B.J. 408, 434 (Tex. Crim. App.
1997) (amended 2003)).  At least two
courts of appeals have interpreted this requirement to apply to the current
Rule 25.2.  See Barcenas v. State, ___ S.W.3d ___, ___, No. 01-04-00069-CR,
2004 Tex. App. LEXIS 4607, at *2 (Tex. App.—Houston [1st Dist.] May 20,
 2004, no pet. h.) (per
curiam); Waters, 124 S.W.3d at 826.  An attempted appellant cannot circumvent this
requirement by falsely stating that he or she has the right of appeal.  See
Woods at 316; Barcenas, ___
S.W.3d at ___, 2004 Tex. App. LEXIS 4607, at *2; Chabera v. State, No. 01-03-00630-CR, 2004 Tex. App. LEXIS 3970, at *3 (Tex. App.—Houston [1st Dist.] Apr. 29, 2004, no pet.) (not designated for publication)
(mem. op.) (per curiam); Waters at
826-27.
      At
least two courts have thus held that “[w]hen the trial court’s certification
states that there is a right to appeal and the record is clear that the
appellant has no such right,” the appellate court should dismiss the attempted
appeal.  Barcenas, ___ S.W.3d at ___, 2004 Tex. App. LEXIS 4607, at *3-*4; accord Chabera, 2004 Tex. App. LEXIS
3970, at *3; Waters, 124 S.W.3d at
826-27; see 43A George E. Dix & Robert O. Dawson, Texas
Practice: Criminal Practice and Procedure § 43.287, at 111 (2d ed.
Supp. 2003).  This would be true even
when counsel files an Anders
brief.  Chabera at *1-*3; see Anders
v. California, 386 U.S. 738 (1967).  The appellate rules would not require that
the appellate court attempt to obtain an amended certification from the trial
court.  Barcenas, ___ S.W.3d at ___, 2004 Tex. App. LEXIS 4607, at *3-*4.  Were we writing
on a clean slate, I would adopt this interpretation.  As it is, in accordance with our precedent,
we must abate for the entry of an amended certification.  See
Harris, ___ S.W.3d at ___, 2004 Tex. App. LEXIS 4366, at *4.
      In accordance with our precedent,
Appellant’s certification is defective, and we should abate the appeal for an
amended certification.  In the
alternative, we should dismiss the attempted appeal without abating it.  Because the majority does neither, I
respectfully dissent.
TOM
GRAY
Chief Justice
Dissenting
opinion delivered and filed July 28, 2004
Publish




[1]  See
Tex. Code Crim. Proc. Ann. art.
42.12, § 9(a) (Vernon Supp. 2004) (presentence investigation (PSI)); Tex. Gov’t Code Ann.
§ 491.001(b)(5) (Vernon 1998)
(TDC or “‘Texas Department of
Corrections’ means the institutional division” of the Texas Department of
Criminal Justice).



stParagraph align=center style='margin-left:.75in;text-align:
center;text-indent:-.5in'>IV. Conclusion
 
We affirm the judgment of the trial
court.
 
 
 
AL SCOGGINS
                                                                                    Justice
 
 
Before Chief
Justice Gray,
            Justice
Davis, and
            Justice
Scoggins
Affirmed
Opinion
delivered and filed August 31, 2011
[CV06]
 



 




[1] We note that there is some disagreement
among the intermediate appellate courts as to the proper standard of review to
be applied in appeals from protective orders.  At least one court has held that
because a protective order provides relief similar to that provided by an
injunction, the proper standard of review is abuse of discretion.  See In re
Epperson, 213 S.W.3d 541, 542-43 (Tex. App.—Texarkana 2007, no pet.). 
However, other courts, including this one, have applied legal and factual
sufficiency standards of review to appeals from protective orders.  See
Clements v. Haskovec, 251 S.W.3d 79, 84 (Tex. App.—Corpus Christi 2008, no
pet.); In re T.L.S., 170 S.W.3d 164, 166 (Tex. App.—Waco 2005, no pet.)
(“We apply the usual no-evidence and factual insufficiency standards of review
in an appeal from a protective order.”), overruled on other grounds by In re
J.D., 304 S.W.3d 522 (Tex. App.—Waco 2009, no pet.); Vongontard v.
Tippit, 137 S.W.3d 109, 112 (Tex. App.—Houston [1st Dist.] 2004, no pet.); Pena
v. Garza, 61 S.W.3d 529, 532 (Tex. App.—San Antonio 2001, no pet.).


[2] The Texas Family Code defines a
“household” as “a unit composed of persons living together in the same
dwelling, without regard to whether they are related to each other.”  Tex. Fam. Code Ann. § 71.005 (West
2008).


[3] In a data entry form for the Texas
Crime Information Center, it was noted that Warren is known to have abused
drugs.


