Wilfido Avila Interiano v. State ( 2020 )

DISMISSED; Opinion Filed May 5, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01280-CR
No. 05-19-01281-CR
WILFIDO AVILA INTERIANO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 203rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F14-76579-P & F13-70127-P
MEMORANDUM OPINION
Before Justices Myers, Partida-Kipness, and Reichek
Opinion by Justice Myers
Wilfido Avila Interiano was charged with aggravated sexual assault of a child
under six years of age and arson. On June 24, 2019, appellant signed “open” plea
agreements with the State in which he judicially confessed to the offenses and
waived his right to appeal in exchange for the State striking the “under six years of
age” language from the aggravated sexual assault indictment. That same day,
appellant appeared in open court and was admonished by the trial court, including
the following:
COURT: And in the case ending in ’79, the Aggravated
[Sexual] Assault of a Child, that actually – case had a higher
penalty range. However, your lawyer was able to talk to the State
of Texas, and they were able to strike and waive some language.
APPELLANT: Yes, ma’am.
COURT: The State filed a motion to strike the language
indicating that the victim was under 6 years old. And by striking
that language, the range of punishment in this case, because it is
a first-degree felony, your punishment can be anywhere from 5
years in the penitentiary all the way up to 99 years or life.
APPELLANT: Yes, ma’am.
COURT: If they would not have struck the language, you know
the minimum would have been 25 years, correct?
APPELLANT: Yes, ma’am.
* * *
COURT: And, lastly, if I enter into these plea agreements,
which I do plan to do, I will accept these pleas. You do not have
a right to appeal these cases.
APPELLANT: Yes, ma’am.
Appellant then pleaded guilty to both offenses. On September 12, 2019, the
trial court assessed punishment at sixteen years in prison in each case. One month
later, appellant filed his notices of appeal.
On March 3, 2020, the trial court’s certifications of appellant’s right to appeal
were filed. They state the cases are “not a plea-bargain case, and the defendant has
the right of appeal.” After reviewing the clerk’s and reporter’s record, the Court had
concerns about the accuracy of the certifications and whether we had jurisdiction
over the appeals. We asked the parties for jurisdictional letter briefs. Although
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appellant did not respond, the State filed a letter brief agreeing that we lack
jurisdiction.
Rule 25.2 provides:
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,
(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). If the State abandons or strikes enhancement language
which would have increased the minimum term of imprisonment that the defendant
could have received or agrees to a cap on punishment in exchange for a defendant’s
plea of guilty, the requirements of rule 25.2(a)(2) apply. See Shankle v. State, 119
S.W.3d 808, 813‒14 (Tex. Crim. App. 2003); Carender v. State, 155 S.W.3d 929,
931 (Tex. App.—Dallas 2005, no pet.).
Here, appellant signed plea agreements showing appellant waived his right to
appeal in exchange for the State agreeing to drop the language in the aggravated
sexual assault case that the victim was under 6 years of age. Each agreement states
“If the punishment assessed does not exceed the agreement between [appellant] and
the prosecutor, the Court must give its permission to you before you may appeal any
matter in this case except for those matters raised by written motions prior to trial.”
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Each agreement also has a section entitled “DEFENDANT’S WAIVER OF
RIGHTS AND JUDICIAL CONFESSION” that states appellant “[w]aives the right
to appeal to the Court of Appeals.” The trial court accepted appellant’s guilty pleas
and sentenced appellant to 16 years in prison in each case.
Although the trial court’s certifications state these are not plea bargain cases
and appellant has the right to appeal, we conclude, based on the record, the
certifications are defective and should have indicated these were plea-bargain cases
and appellant had no right to appeal. See Dears v. State, 154 S.W.3d 610, 614‒15
(Tex. Crim App. 2005). Furthermore, the record shows there were no matters raised
by written motion and ruled on before trial. Thus, appellant has no right to appeal
under the rules. See TEX. R. APP. P. 25.2(a), (d).
We dismiss these appeals.
/Lana Myers/
LANA MYERS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
191280F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
WILFIDO AVILA INTERIANO, On Appeal from the 203rd Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. F14-76579-P.
No. 05-19-01280-CR V. Opinion delivered by Justice Myers.
Justices Partida-Kipness and Reichek
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, we DISMISS this appeal for want
of jurisdiction.
Judgment entered this 5th day of May, 2020.
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
WILFIDO AVILA INTERIANO, On Appeal from the 203rd Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. F13-70127-P.
No. 05-19-01281-CR V. Opinion delivered by Justice Myers.
Justices Partida-Kipness and Reichek
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, we DISMISS this appeal for want
of jurisdiction.
Judgment entered this 5th day of May, 2020.
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