DANIEL LEE MORLEY v. THE STATE OF TEXAS (2012)

MEMORANDUM OPINION

Opinion By Justice Francis

Daniel Lee Morley waived a jury and pleaded guilty to two offenses of impersonating a public servant;  two offenses of unlawful possession of a firearm by a felon;  and tampering with a government record.   The trial court sentenced appellant to five years in prison in each of the impersonating a public servant and firearms cases and to two years in a state jail in the tampering case.   We conclude we lack jurisdiction over these appeals.

The indictments in cause nos.   05–11–01408–CR ¹ and 05–11–01409–CR each contained one enhancement paragraph.   At a hearing on April 28, 2011, appellant, who at that time was represented by counsel, indicated he was rejecting the State's plea offer to abandon the enhancement paragraphs in exchange for his pleas to all of the cases.   At a subsequent hearing, the trial court denied appellant's motion to dismiss based on a violation of the Interstate Agreement of Detainers Act. At the plea hearing held on October 11, 2011, appellant elected to represent himself.   The State agreed to abandon the enhancement paragraphs alleged in cause nos.   05–11–01408–CR and 05–11–01409–CR, and appellant agree to waive his right to appeal, in all of his cases, the trial court's ruling on appellant's pretrial motions, specifically appellant's IADA claim.   The trial judge, the prosecutor, and appellant discussed the terms of the plea agreement, and appellant specifically focused on how much credit he would receive for the time he spent in jail since his arrest.   There was no agreement as to the actual term of punishment that would be imposed in each case.   However, the plea agreement form in each case specifically states that appellant waived his right to appeal in exchange for the State abandoning enhancement paragraphs alleged in two of the cases.   Appellant acknowledged he had signed the plea agreement documents and he understood he was waiving his right to appeal the pretrial IADA motion in each case.

The trial judge accepted the guilty pleas and sentenced appellant to five years in prison in each of the impersonating a public servant and firearms convictions and two years in a state jail on the tampering with a government record conviction.   The trial court certified that appellant waived his right to appeal in each case.   See Tex.R.App. P. 25.2(d).

There are two basic kinds of plea bargaining in the United States:  charge-bargaining and sentence-bargaining.  Shankle v. State, 119 S.W.3d 808, 813 (Tex.Crim.App.2003).  “Charge-bargaining involves questions of whether a defendant will plead guilty to a lesser or related offense and whether the prosecutor will dismiss, or refrain from, bringing other charges.”  Id. Sentence-bargaining may be for binding or non-binding recommendations to the trial court, including a cap on the sentence to be imposed or a recommendation for deferred adjudication community supervision.   See id.   Both sentence-bargaining and charge-bargaining affect punishment.   See id.

A defendant may waive his right to appeal in conjunction with a plea bargain agreement.   See Blanco v. State, 18 S.W.3d 218, 219–20 (Tex.Crim.App.2000).   For the waiver to be valid, the defendant must be fully aware of the likely consequences at the time he waived the right to appeal.   See id.

Appellant's counsel filed an Anders brief in cause nos.   05–11–01408–CR and 05–11–01409–CR acknowledging appellant waived his right to appeal those cases.   In cause nos.   05–11–01410–CR through 05–11–01412–CR, appellant asserts the trial judge erred by denying his motion to dismiss and he did not waive his right to appeal those cases.   The State responded, in its jurisdictional brief, that appellant validly waived his right to appeal all of his cases in conjunction with the agreement to abandon the enhancement paragraphs in two of the cases.

The record of the plea hearing shows that appellant, who chose to represent himself, clearly understood he was waiving his right to appeal the trial court's ruling on his IADA motion in all of the cases in exchange for the State abandoning the enhancement paragraphs in two of the cases.   See Shankle, 119 S.W.3d at 813;  Blanco, 18 S.W.3d at 219–20.   We conclude this agreement constitutes both charge-bargaining and sentence-bargaining.   See Shankle, 119 S.W.3d at 813.   We further conclude the record shows appellant understood the consequences of the waiver of his right to appeal all of his cases and that the waiver was freely and voluntarily made.   See Blanco, 18 S.W.3d at 219–20.   Appellant's counsel acknowledged the waiver in cause nos.   05–11–01408–CR and 05–11–01409–CR.   In cause nos.   05–11–01410–CR through 05–11–01412–CR, the only substantive issue appellant raises challenges the trial court's order denying his motion to dismiss the cases.   Appellant waived his right to appeal this ruling, leaving us without jurisdiction over the appeals.   See Shankle, 119 S.W.3d at 814.

We dismiss the appeals for want of jurisdiction.

MOLLY FRANCIS

JUSTICE

Do Not Publish

Tex.R.App. P. 47

111408F.U05 S

Court of Appeals

Fifth District of Texas at DallasJUDGMENT

DANIEL LEE MORLEY, Appellant

No. 05–11–01408–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 366th Judicial District Court of Collin County, Texas.  (Tr.Ct.No.366–80873–10).

Opinion delivered by Justice Francis, Justices O'Neill and Richter participating.   Based on the Court's opinion of this date, we DISMISS the appeal for want of jurisdiction.

Judgment entered March 27, 2012.

/Molly Francis/

MOLLY FRANCIS

JUSTICE

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

DANIEL LEE MORLEY, Appellant

No. 05–11–01409–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 366th Judicial District Court of Collin County, Texas.  (Tr.Ct.No.366–80874–10).

Opinion delivered by Justice Francis, Justices O'Neill and Richter participating.   Based on the Court's opinion of this date, we DISMISS the appeal for want of jurisdiction.

Judgment entered March 27, 2012.

/Molly Francis/

MOLLY FRANCIS

JUSTICE

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

DANIEL LEE MORLEY, Appellant

No. 05–11–01410–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 366th Judicial District Court of Collin County, Texas.  (Tr.Ct.No.366–80875–10).

Opinion delivered by Justice Francis, Justices O'Neill and Richter participating.   Based on the Court's opinion of this date, we DISMISS the appeal for want of jurisdiction.

Judgment entered March 27, 2012.

/Molly Francis/

MOLLY FRANCIS

JUSTICE

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

DANIEL LEE MORLEY, Appellant

No. 05–11–01411–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 366th Judicial District Court of Collin County, Texas.  (Tr.Ct.No.366–80876–10).

Opinion delivered by Justice Francis, Justices O'Neill and Richter participating.   Based on the Court's opinion of this date, we DISMISS the appeal for want of jurisdiction.

Judgment entered March 27, 2012.

/Molly Francis/

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

DANIEL LEE MORLEY, Appellant

No. 05–11–01412–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 366th Judicial District Court of Collin County, Texas.  (Tr.Ct.No.366–80877–10).

Opinion delivered by Justice Francis, Justices O'Neill and Richter participating.   Based on the Court's opinion of this date, we DISMISS the appeal for want of jurisdiction.

Judgment entered March 27, 2012.

/Molly Francis/

MOLLY FRANCIS

JUSTICE

FOOTNOTES

FN1. Cause no.   05–11–01408–CR is a duplicate filing of an appeal docketed as cause no.   05–11–01466–CR.   Cause no.   05–11–01466–CR was dismissed on November 21, 2011 because appellant waived his right to appeal in conjunction with the plea agreement..  FN1. Cause no.   05–11–01408–CR is a duplicate filing of an appeal docketed as cause no.   05–11–01466–CR.   Cause no.   05–11–01466–CR was dismissed on November 21, 2011 because appellant waived his right to appeal in conjunction with the plea agreement.

MOLLY FRANCIS JUSTICE