Eduardo Mendez v. State , 558 S.W.3d 823 ( 2018 )

Dismissed and Opinion filed August 30, 2018.
In The
Fourteenth Court of Appeals
NO. 14-18-00580-CR
EDUARDO MENDEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court
Harris County, Texas
Trial Court Cause No. 1434761
OPINION
Based on a plea bargain agreement between appellant and the State, on April
30, 2015, the trial court signed an order deferring an adjudication of guilt for the
offense of indecency with a child by exposure and placing appellant on community
supervision for eight years. On February 22, 2018, the State filed a motion to
adjudicate guilt. Appellant and the State entered into another plea-bargain agreement
under which appellant pleaded “true” to the allegations in the motion to adjudicate
in exchange for the State’s sentencing recommendation of three years’
imprisonment. The trial court accepted the plea bargain, signed an order adjudicating
guilt, and sentenced appellant to confinement for three years in the Institutional
Division of the Texas Department of Criminal Justice. The trial court entered a
certification of the defendant’s right to appeal in which the court certified that this
is a plea-bargain case and the defendant has no right of appeal. See Tex. R. App. P.
25.2(a)(2).
In a plea-bargain case for deferred adjudication community supervision, the
plea bargain is complete at the time the defendant enters his plea of guilty in
exchange for deferred adjudication community supervision. Hargesheimer v. State,
182 S.W.3d 906, 911–12 (Tex. Crim. App. 2006). If a defendant enters a plea of true
to a subsequent motion to adjudicate, the rule governing plea-bargain appeals does
not apply. Id. at 913 (“[W]hen the defendant appeals from the proceeding on the
motion to adjudicate guilt, Rule 25.2(a)(2) will not restrict appeal[.]”).
This case is distinguishable from Hargesheimer in that appellant signed a
waiver of appeal during the proceeding at which his guilt was adjudicated. The
waiver states, “As part of my agreement with the prosecutor to plead true, I agree to
waive any right to appeal I may have concerning any issue or claim in this case,
including my plea of true or admission of guilt.” The waiver further recites, “I
understand that the prosecutor will recommend that I be adjudicated guilty in this
cause and my punishment should be set at 3 years [TDCJ] and a fine of $0 and I
agree to that recommendation.” Appellant initialed both statements in addition to
signing the agreement.
A pretrial or presentencing waiver of the right to appeal is binding if the
waiver is made voluntarily, knowingly, and intelligently. Ex parte Delaney, 207
S.W.3d 794, 799 (Tex. Crim. App. 2006). If the actual punishment is determined by
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the plea agreement when the waiver is made, the waiver is knowingly and
intelligently made. Id.
The trial court assessed punishment in accordance with the terms of the
agreement. Therefore, appellant’s waiver of the right to appeal is binding. See
Jackson v. State, 168 S.W.3d 239, 242–43 (Tex. App.–Fort Worth 2005, no pet.)
(finding waiver of appeal of order adjudicating guilt binding).
Accordingly, we dismiss the appeal.
PER CURIAM
Panel consists of Chief Justice Frost and Justices Boyce and Busby.
Publish — Tex. R. App. P. 47.2(b).
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