Jasmine Marie Arteaga v. the State of Texas ( 2023 )


Menu:
  • Opinion issued March 2, 2023
    In The
    Court of Appeals
    For The
    First District of Texas
    ————————————
    NO. 01-22-00601-CR
    ———————————
    JASMINE MARIE ARTEAGA, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 338th District Court
    Harris County, Texas
    Trial Court Case Nos. 1708893
    MEMORANDUM OPINION
    After appellant, Jasmine Marie Arteaga, with an agreed punishment
    recommendation from the State, pleaded guilty to the felony offense of possession
    of a controlled substance, namely, methamphetamine, weighing more than four
    grams but less than 200 grams,1 the trial court deferred adjudication of her guilt and
    placed her on community supervision for four years. Appellant timely filed a notice
    of appeal.
    We dismiss the appeal for lack of jurisdiction.2
    Background
    On April 9, 2021, a Harris County Grand Jury issued a true bill of indictment,
    alleging that appellant, on or about January 30, 2021, “unlawfully, intentionally and
    knowingly possess[ed] a controlled substance, namely, [m]ethamphetamine,
    weighing more than 4 grams and less than 200 grams by aggregate weight.”
    Appellant, with an agreed punishment recommendation from the State,
    pleaded guilty to the felony offense of possession of a controlled substance, namely,
    methamphetamine, weighing more than four grams but less than 200 grams. In
    connection with her plea agreement, appellant signed a “Waiver of Constitutional
    1
    See TEX. HEALTH & SAFETY CODE ANN. § 481.115(d).
    2
    Appellant’s appointed appellate counsel filed an Anders brief stating that the record
    presents no reversible error and the appeal is without merit and is frivolous. See
    Anders v. California, 
    386 U.S. 738
    , 744 (1967). However, our review of the record
    reflects that we lack jurisdiction over the appeal. See, e.g., Williams v. State, No.
    01-20-00173-CR, 
    2022 WL 52635
    , at *1–2 (Tex. App.—Houston [1st Dist.] Jan. 6,
    2022, no pet.) (mem. op., not designated for publication) (dismissing appeal in
    which appointed appellate counsel filed Anders brief because this Court lacked
    jurisdiction); Terrell v. State, 
    245 S.W.3d 602
    , 605–06 (Tex. App.—Houston [1st
    Dist.] 2007, no pet.) (dismissing appeal in which appointed appellate counsel filed
    Anders brief because defendant entered into plea-bargain agreement, defendant had
    no right to appeal under Texas Rule of Appellate Procedure 25.2(a)(2), and Court
    was required to dismiss appeal without examining merits of appeal).
    2
    Rights, Agreement to Stipulate, and Judicial Confession,” in which she pleaded
    guilty to the felony offense of possession of a controlled substance and admitted that
    she committed the acts alleged in the indictment. Appellant’s appointed counsel also
    signed the “Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial
    Confession,” affirming that he believed appellant had entered her guilty plea
    knowingly, voluntarily, and after a full discussion of the consequences of the plea.
    Appellant’s appointed counsel also affirmed that he believed appellant was
    competent to stand trial.
    The “Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial
    Confession” also included the following waiver of appellant’s right to appeal:
    In open court I consent to the oral and written stipulation of evidence
    in this case and to the introduction of affidavits, written statements[] of
    witnesses, and other documentary evidence. I am satisfied that the
    attorney representing me today in court has properly represented me
    and I have fully discussed this case with him. I intend to enter a plea
    of guilty and the prosecutor will recommend that my punishment
    should be set at 4 year[s] [deferred adjudication] . . . and I agree to that
    recommendation. I waive any further time to prepare for trial to which
    I or my attorney may be entitled. Further, I waive any right of appeal
    which I may have should the court accept the foregoing plea bargain
    between myself and the prosecutor.
    Appellant also signed written admonishments, informing her that she had been
    indicted for the felony offense of possession of a controlled substance and of the
    punishment ranges for that offense. Appellant further acknowledged that she
    understood that “[i]f the punishment assessed by the court does not exceed the
    3
    punishment recommended by the prosecutor and agreed to by [appellant] and [her]
    attorney, the court must give its permission to [appellant] before [she] may
    prosecute an appeal on any matter in this case except for those matters raised by
    [appellant] by written motion filed prior to trial.” The written admonishments also
    included a “Statements and Waivers of Defendant,” affirming that she was mentally
    competent, she understood the nature of the charges against her, the trial court’s
    admonishments, and the consequences of her pleas, and she freely and voluntarily
    pleaded guilty.
    Moreover, appellant represented that she had consulted with her trial counsel
    about her plea; she “waive[d] and g[a]ve up any time provided [appellant] by law to
    prepare for trial”; she was “totally satisfied with the representation provided by [her]
    counsel and [she had] received effective and competent representation”; she
    “waive[d] and g[a]ve up [her] right to a jury in th[e] case and [her] right to require
    the appearance, confrontation and cross[-]examination of the witnesses”; and she
    “confess[ed] and admit[ted] that [she] committed each and every allegation
    contained” in the indictment. Appellant requested that the trial court accept her
    guilty plea.
    Finally, appellant signed a document titled, “Advice of Defendant’s Right of
    Appeal,” explaining that because appellant “pled guilty . . . and accepted the
    punishment recommended by the prosecutor, [appellant could not] appeal [her]
    4
    conviction unless the [trial court gave her] permission.”           Further, appellant
    acknowledged that she “waived or gave up [the] right to appeal, [and she could not]
    appeal [her] conviction.”
    The trial court found sufficient evidence of appellant’s guilt and that she had
    entered her guilty plea freely, knowingly, and voluntarily.           The trial court
    admonished appellant of her legal rights and accepted her plea of guilty to the alleged
    offense. On July 28, 2022, the trial court entered an Order of Deferred Adjudication,
    deferring adjudication of appellant’s guilt and, in accordance with the agreement
    between appellant and the State, placing her on community supervision for four
    years. The trial court’s Order of Deferred Adjudication acknowledges that a plea
    agreement had been reached between the State and appellant.
    Also on July 28, 2022, the trial court entered its “Certification of [Appellant’s]
    Right of Appeal, which states that this “[i]s a plea bargain case, and the [appellant]
    has NO right of appeal.” See TEX. R. APP. P. 25.2(a)(2), (d). The trial court’s
    certification is included in the appellate record and is signed by appellant and her
    counsel. See 
    id.
     The record supports the trial court’s certification. See Dears v.
    State, 
    154 S.W.3d 610
    , 615 (Tex. Crim. App. 2005).
    On August 17, 2022, appellant filed a pro se notice of appeal. In her notice
    of appeal, appellant included a handwritten note stating that her “plea was
    involuntary,” and that her “lawyer didn’t explain to [her] the consequences of [her]
    5
    plea.” She goes on to state that her counsel “told [her] if [she pleaded] no contest
    [her] case would be thrown out.” On August 31, 2022, appellant’s court-appointed
    trial counsel filed a motion to withdraw as appellant’s counsel. The trial court
    granted the motion to withdraw and appointed counsel to represent appellant on
    appeal.
    Jurisdiction
    “Courts always have jurisdiction to determine their own jurisdiction.” Harrell
    v. State, 
    286 S.W.3d 315
    , 317 (Tex. 2009) (internal quotations omitted). Criminal
    defendants have a statutory right to appeal their conviction. See TEX. CODE CRIM.
    PROC. ANN. art. 44.02; Carson v. State, 
    559 S.W.3d 489
    , 492 (Tex. Crim. App.
    2018). However, when a trial court enters a judgment of guilt, it must certify
    whether the defendant has a right of appeal. See TEX. R. APP. P. 25.2(a)(2). Texas
    Rule of Appellate Procedure 25.2(a) states that:
    In a plea bargain case–that is, a case in which a defendant’s plea was
    guilty . . . 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, (B) after getting the trial
    court’s permission to appeal, or (C) where the specific appeal is
    expressly authorized by statute.
    TEX. R. APP. P. 25.2(a)(2).
    An appeal must be dismissed if a certification showing that a defendant has
    the right of appeal has not been made part of the record. See TEX. R. APP. P. 25.2(d);
    6
    Dears, 
    154 S.W.3d at 613
    . Here, the record is clear that appellant pleaded guilty to
    the alleged offense and the punishment did not exceed the punishment recommended
    by the State. Accordingly, appellant could only appeal those matters raised by
    written motion filed and ruled on before trial, with the permission of the trial court,
    or where she was authorized to appeal by statute. See TEX. R. APP. P. 25.2(a)(2).
    The record does not reflect that appellant’s appeal meets any of these requirements.
    Thus, appellant may not appeal her conviction for the felony offense possession of
    a controlled substance.
    We note that, in her notice of appeal, filed pro se, appellant challenges the
    voluntariness of her guilty plea, stating that her “plea was involuntary,” and that her
    “lawyer didn’t explain to [her] the consequences of [her] plea.” She further stated
    that her trial counsel “told [her] if [she pleaded] no contest [her] case would be
    thrown out.”3 However, the Texas Court of Criminal Appeals has concluded that
    Rule 25.2 “does not permit the voluntariness of the plea to be raised on appeal.”
    Cooper v. State, 
    45 S.W.3d 77
    , 83 (Tex. Crim. App. 2001) (dismissing appeal for
    lack of jurisdiction where appellant entered plea-bargain agreement with State but
    later filed notice of appeal challenging voluntariness of plea); see also Lenox v. State,
    3
    We also note that, while appellant’s notice of appeal references that her trial counsel
    advised her that if she pleaded “no contest,” the “case would be thrown out,” the
    record reflects that appellant did not plead “no contest,” and instead entered a plea
    of guilty.
    7
    
    56 S.W.3d 660
    , 664–65 n.2 (Tex. App.—Texarkana 2001, pet. ref’d) (concluding
    court was “without jurisdiction to consider the voluntariness of [appellant’s] plea”).
    Instead, “meritorious claims of involuntary pleas may be raised by other procedures:
    motion[s] for new trial and [post-conviction] habeas corpus.” Cooper, 
    45 S.W.3d at 82
     (“These procedures are not only adequate to resolve claims of involuntary pleas,
    but they are superior to appeal in that the claim may be supported by information
    from sources broader than the appellate record.”).
    Because appellant has no right of appeal, we must dismiss her appeal. See
    Chavez v. State, 
    183 S.W.3d 675
    , 680 (Tex. Crim. App. 2006) (“A court of appeals,
    while having jurisdiction to ascertain whether an appellant who plea-bargained is
    permitted to appeal by [Texas Rule of Appellate Procedure] 25.2(a)(2), must dismiss
    a prohibited appeal without further action, regardless of the basis for the appeal.”);
    see also Fairley v. State, Nos. 01-20-00824-CR, 01-20-00825-CR, 
    2022 WL 210457
    , at *1–3 (Tex. App.—Houston [1st Dist.] Jan. 25, 2022, no pet.) (mem. op.,
    not designated for publication).
    Accordingly, we dismiss the appeal for lack of jurisdiction. See TEX. R. APP.
    P. 43.2(f). We dismiss any pending motions as moot.
    PER CURIAM
    Panel consists of Justices Landau, Countiss, and Guerra.
    Do not publish. TEX. R. APP. P. 47.2(b).
    8