David Lee Rickerson v. State ( 2020 )

DISMISSED and Opinion Filed February 19, 2020
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00990-CR
DAVID LEE RICKERSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F18-76037-M
MEMORANDUM OPINION
Before Justices Schenck, Osborne, and Reichek
Opinion by Justice Reichek
We reinstate this appeal.
David Lee Rickerson entered a guilty plea to murder and a jury assessed punishment at life
imprisonment. Ten days after he filed his notice of appeal, the trial court held an informal,
unrecorded hearing and changed its certification from certifying he had a right to appeal to
certifying he waived his right to appeal. See TEX. R. APP. P. 25.2(f) (an amended trail court’s
certification of the defendant’s right to appeal may be filed to correct a defect in an earlier filed
certification). Appellant then filed a motion in this Court requesting a determination of whether
we have jurisdiction over the appeal. After receiving the clerk’s record, a reporter’s record from
an evidentiary hearing we ordered regarding appellant’s plea, and a reporter’s record from a
pretrial hearing admitted as an exhibit during the evidentiary hearing, we conclude we do not have
jurisdiction and dismiss the appeal.
The record shows appellant was indicted for capital murder with two enhancement
paragraphs. Appellant entered into a plea agreement with the State. Under the terms of the
agreement, appellant agreed to plead guilty to murder in an “open plea” to the jury, stipulate to the
two enhancement paragraphs, and waive his right to appeal in exchange for the State’s agreement
to reduce the charge to the lesser offense of murder. The parties’ agreement is documented in a
written plea bargain signed on May 20, 2019. The agreement lists the offense as “murder,”
provides appellant will plead guilty and enter pleas of true to the enhancement paragraphs, and
that it will be an “open plea to the jury.” The box on the plea form indicating appellant will waive
his right to appeal is not checked.
At a pretrial hearing held on May 20, 2019, the parties described the agreement to the trial
court as follows:
[Prosecutor]: we have entered into a plea bargain negotiated position where this
case was originally charged as a capital murder, in exchange for us
reducing the case to a regular murder, the defendant would agree to
plead guilty, his punishment be assessed by the jury. He would need
to plead true and stipulate to the evidence related to the case to both
enhancement paragraphs and the certified copies of his priors. And
he would also waive his appeal right for consideration of this case
being reduced from capital murder to murder.
[The court]: And you agree with that, [counsel]?
[Counsel]: Yes, sir.
[The court]: And, [appellant], you agree with that?
[Appellant]: Yes, sir.
[The court]: And that’s what you wish to do?
[Appellant]: Yes, sir.
[The court]: Very well.
...
–2–
[Counsel]: And, Your Honor, we would waive reading of the indictment and
[appellant] will enter a plea of guilty to the lesser included charge of
murder.
[The court]: And, [appellant], let me explain to you, that you have an absolute right
to—in this matter to plead not guilty.
[Appellant]: Yes, sir.
[The Court]: And by entering into your plea of guilty to the lesser included offense
of murder, has anyone forced you, made you any promises or coerced
you into entering into that plea?
[Appellant]: No, sir.
[The Court]: You are doing so freely and voluntarily because this is the way you
wish to proceed in this matter?
[Appellant]: Yes, sir.
[The court]: And you understand the terms of the plea bargain agreement with
respect to waiving your right to appeal?
[Appellant]: Yes, sir.
[The Court]: And this is what you wish to do in exchange for the State dropping
this offense from capital murder to murder?
[Appellant]: Yes, sir.
…
[The Court]: Court will accept the defendant’s plea of guilty to the lesser included
of murder.
When a defendant waives the right to appeal in exchange for valuable consideration from
the State, the waiver is enforceable provided it is made voluntarily, knowingly, and intelligently.
See Jones v. State, 488 S.W.3d 801, 805 (Tex. Crim. App. 2016); Ex parte Broadway, 301 S.W.3d
694, 697 (Tex. Crim. App. 2009). In determining whether a plea bargained waiver of the right to
appeal is valid, we consider the written agreement and the formal record to determine the terms of
the agreement. Jones, 488 S.W.3d at 805. A valid waiver prevents the defendant from appealing
–3–
any issue unless the trial court consents to the appeal. Carson v. State, 559 S.W.3d 489, 493 (Tex.
Crim. App. 2018).
In his motion to determine jurisdiction, appellant contends that (1) the waiver of his right
to appeal was not “knowingly and intelligently made” because he made it pretrial when he could
not know what his punishment would be or what errors might occur at trial; (2) the State’s
consideration was inadequate; and (3) the waiver of the right to appeal, a critical right, should not
be enforced when it is not reduced to writing and not heard in open court to ensure appellant
understood the rights he was waiving.
Regarding appellant’s first and second contentions, a waiver of the right to appeal executed
prior to sentencing may be upheld when the record shows the defendant received valuable
consideration for the waiver. Carson, 559 S.W.3d at 495–96; Broadway, 301 S.W.3d at 699. The
record before us shows appellant and the State reached a plea bargain in which appellant waived
his right to appeal in exchange for the State’s agreement to reduce the charge from capital murder
to murder. This type of plea bargain is a charge-bargaining agreement. See Shankle v. State, 119
S.W.3d 808, 813 (Tex. Crim. App. 2003). Charge-bargaining agreements involve a defendant
pleading guilty to a lesser or related offense in exchange for the prosecutor dismissing, or
refraining from bringing, other charges. See id.
The punishment for an adult convicted of capital murder where the State does not seek the
death penalty is an automatic life sentence without parole. See TEX. PENAL CODE ANN. §
12.31(a)(2). The punishment range for a murder offense enhanced by two prior convictions is
imprisonment for life or a term of years of not more than 99 years and not less than 25 years. See
TEX. PENAL CODE ANN. §§ 12.32, 12.42(d). By allowing appellant to plead guilty to the lesser
offense of murder enhanced by two prior convictions, the State opened the option for the jury to
sentence appellant to less prison time with the possibility that he might eventually be paroled. We
–4–
conclude this possibility of a lighter sentence constitutes sufficient consideration to support
appellant’s waiver of the right to appeal. Because appellant received valuable consideration for
his plea, his waiver of the right to appeal is enforceable against him. See Carson, 559 S.W.3d at
495–96; Jones, 488 S.W.3d at 807–08; Broadway, 301 S.W.3d at 699. Allowing appellant to plead
to a lesser charge with a lower punishment range and the possibility of parole constituted sufficient
consideration for appellant’s pretrial waiver of his right to appeal. See Jones, 488 S.W.3d at 807.
The fact that the jury chose not to bestow a lighter punishment on appellant does not change our
view that the opportunity was valuable consideration given to appellant by the State.
Regarding appellant’s third contention, we agree with appellant that the record does not
reflect the waiver of the right to appeal was reduced to writing. The record shows the written plea
agreement does not reflect appellant was waiving his right to appeal. However, in considering the
entire record, we must disagree with his contention that the waiver was not discussed in open court
and the record does not reflect his understanding of the valuable right he was giving up. The trial
court discussed the waiver of the right to appeal with appellant during the pretrial hearing and the
colloquy makes clear that appellant understood the right he was surrendering to get the chance to
persuade the jury he deserved a lesser punishment. In the trial court’s evidentiary hearing, both
the trial prosecutor and appellant’s trial counsel agreed the waiver was a part of the plea bargain
and trial counsel represented to the trial court that appellant had affirmed his understanding that
he had waived his right to appeal as part of the plea bargain in both the pretrial hearing and in a
post-sentencing hearing. Because there is a record of appellant’s affirmation at the pretrial hearing
and trial counsel’s statement to the trial court that appellant again reaffirmed at a post-sentencing
hearing that he understood he waived his right to appeal in exchange for the State’s reduction in
charge, we conclude the record adequately reflects appellant waived his right to appeal.
–5–
The trial court has filed an amended certification showing appellant waived his right to
appeal. We conclude the trial court’s certification accurately reflects that appellant voluntarily,
knowingly and intelligently waived his right to appeal as part of a plea bargain agreement. See
Jones, 488 S.W.3d at 808. Lacking jurisdiction over the appeal, we are required to dismiss the
appeal without further action. See Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006).
We dismiss the appeal for want of jurisdiction.
/Amanda L. Reichek/
AMANDA L. REICHEK
JUSTICE
Do Not Publish
Tex. R. App. P. 47.2(b)
190990F.U05
–6–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DAVID LEE RICKERSON, Appellant On Appeal from the 194th Judicial District
Court, Dallas County, Texas
No. 05-19-00990-CR V. Trial Court Cause No. F18-76037-M.
Opinion delivered by Justice Reichek,
THE STATE OF TEXAS, Appellee Justices Schenck and Osborne participating.
Based on the Court’s opinion of this date, we DISMISS this appeal.
Judgment entered February 19, 2020
–7–