LAMARKUS KENTRELLE HILL v. THE STATE OF TEXAS (2017)

MEMORANDUM OPINION

Lamarkus Kentrelle Hill attempts to appeal from his conviction in Walker County ¹ of aggravated robbery, with a deadly-weapon finding, and the resulting sentence of twenty years' incarceration. This Court is without jurisdiction to consider Hill's appeal because, as a result of his plea bargain with the State, he had no right of appeal.

The Texas Legislature has granted a very limited right of appeal in plea-bargain cases. Rule 25.2 of the Texas Rules of Appellate Procedure details that right as follows:

In a plea bargain case—that is, a case in which a defendant's plea was 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). Initially, the parties and the trial court treated this case as an open plea, since there was no specific sentencing recommendation agreed to by Hill and the State. In fact, the trial court's initial certification of Hill's right of appeal indicated that this was not a plea-bargain case and that Hill had an unfettered right of appeal. However, in actuality, Hill and the State agreed to a cap on the punishment that Hill could receive, and the trial court expressly honored that cap in determining Hill's sentence in this matter. As evidence of this cap, when asked during Hill's plea hearing if the State had anything further to offer, the State responded,

Only that per this plea agreement in exchange for his plea of guilty and we've agreed to cap his punishment at forty years, and we've agreed to dismiss Cause No. 27-187 that's pending in this court, which is evading in a vehicle, and we've asked you to take into consideration 27-571 and 27-573.

The court responded, “Okay, I'm going to honor that portion of the agreement, Mr. Hill.” Indeed, the trial court honored the agreement and sentenced Hill to twenty years' incarceration.

When a defendant and the State agree to recommend a sentencing cap to the trial court and the trial court honors the recommended cap, that is considered a plea-bargain case for purposes of Rule 25.2(a)(2). See Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006); Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003); Wilson v. State, 264 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Waters v. State, 124 S.W.3d 825, 826 (Tex. App.—Houston [14th Dist.] 2003, pet. ref'd). Hill and his attorney signed a document, indicating their understanding of its contents, that stated,

[I]f the Court accepts the punishment recommended by the prosecutor or sentences me to a lesser punishment, I have the right to appeal any matter raised by written motion that was filed and ruled on before my trial, and ․ I may appeal if the trial court gives me permission to do so. I am pleading guilty in this case because I am guilty. I hereby waive my right to appeal this case.

See TEX. R. APP. P. 25.2(a). The appellate record filed in this matter contains no written motions filed by Hill and ruled on before trial. Further, there is no indication in the record that Hill obtained the trial court's permission to appeal.

On May 12, 2017, we informed Hill of the apparent defect in our jurisdiction over his appeal and afforded him an opportunity to respond and, if possible, cure such defect.² In light of the foregoing, we also requested that the trial court have filed with this Court, in a supplemental clerk's record, an accurate certification of right of appeal, as the trial court's certification did not accurately reflect the realities of the case. See Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005); Shankle, 119 S.W.3d at 813.

Hill filed a response in which he requested additional time to cure the defect in the certification of his right of appeal. After having granted that request, we received a supplemental clerk's record containing a second certification of Hill's right of appeal, this time indicating that this is a plea-bargain case and that Hill does not have a right of appeal.³ Pursuant to Rule 25.2(d) of the Texas Rules of Appellate Procedure, this Court is required to dismiss an appeal if, as in this case, the trial court's certification indicates no right of appeal. See TEX. R. APP. P. 25.2(d).

Because Hill has no right of appeal as a result of his plea bargain with the State and because the trial court's certification correctly indicates that Hill is without a right of appeal, we dismiss this appeal for want of jurisdiction.

FOOTNOTES

1.   Originally appealed to the Tenth Court of Appeals in Waco, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV'T CODE ANN. § 73.001 (West 2013). We are unaware of any conflict between precedent of the Tenth Court of Appeals and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3.

2.   See Harris v. State, 137 S.W.3d 829 (Tex. App.—Waco 2004, order) (per curiam), disp. on merits, 160 S.W.3d 621 (Tex. App.—Waco 2005, pet. struck) (abatement to trial court for preparation and filing of corrected certification supported by the record).

3.   The certification also states, “[Hill] has waived the right of appeal on the issue of guilt.” While we strongly question whether Hill's waiver was limited to the issue of guilt, we need not decide that issue as Hill's waiver, under the facts of this case, is immaterial given that he did not have a right of appeal in the first place. Consequently, because there is nothing on the revised certification that indicates Hill has been given permission to appeal and because the additional language on the revised certification is not inconsistent with the accurate certification that this is plea-bargain case, the additional language does not affect the outcome of the case. We also note, for the record, that the supplemental clerk's record includes a letter from Hill's attorney to the Walker County District Clerk indicating that on May 16, 2017, counsel provided a copy of the revised certification of Hill's right of appeal to Hill and that Hill expressly declined to sign the revised certification.

Bailey C. Moseley Justice