Mirna Salas Abbott v. State ( 2020 )

Second Order on Continuing Abatement filed October 2, 2020.
In The
Fourteenth Court of Appeals
NO. 14-18-00685-CR
MIRNA SALAS ABBOTT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 207th District Court
Comal County, Texas
Trial Court Cause No. CR2017-585(1)
SECOND ORDER ON CONTINUING ABATEMENT
Appellant Mirna Salas Abbott was convicted of the felony offense of
possession of a controlled substance (more than four grams but less than 200 grams).
In challenging the trial court’s judgment as to her guilt, appellant raises due-process-
of-law and ineffective-assistance-of-counsel issues related to events that took place
before she entered a plea of guilty to the charged offense. The State has argued on
appeal that appellant has waived her right to appeal as to these issues.
In its certification under Texas Rule of Appellate Procedure 25.2(a)(2), the
trial court certified that this case “is not a plea-bargain case, and the defendant has
the right to appeal except as to guilt/innocence.” Thus, the trial court certified that
appellant has no right to appeal as to guilt/innocence. If this certification is accurate,
then appellant would have no right to appeal as to all the complaints she has raised
in this court. As long as this certification stands as the current Rule 25.2(a)(2)
certification in our appellate record, we cannot proceed to address appellant’s
appellate complaints. See Tex. R. App. P. 25.2(d) (stating that “[t]he appeal must
be dismissed if a certification that shows the defendant has the right of appeal has
not been made part of the record under these rules”); Jones v. State, 488 S.W.3d 801,
804 (Tex. Crim. App. 2016). This court has an obligation to review the record and
determine whether the trial court’s Rule 25.2(a)(2) certification is defective. See
Jones, 488 S.W.3d at 805. Even though a certification may be correct in form, if the
certification is contrary to the appellate record, the certification is defective. See
Jones, 488 S.W.3d at 804; Dears v. State, 154 S.W.3d 610, 614 (Tex. Crim. App.
2005). Thus, in our July 30, 2020, order in this appeal (“July Order”), we reviewed
the appellate record to determine whether the trial court’s Rule 25.2(a)(2)
certification is contrary to the record and thus defective. See Jones, 488 S.W.3d at
805.
The record reflects that appellant signed a document entitled
“Admonishments, Voluntary Statements, Waivers, Stipulations, Judicial Confession
& Plea Bargain Agreement” (the “Plea Papers”). Though the title of the Plea Papers
includes the term “Plea Bargain Agreement,” and though this term is used several
times in the document, the text makes clear that the document is based on a form
that may be used for a plea bargain agreement and also may be used for “guilty”
pleas without any plea bargain agreement. The Plea Papers provide that “[i]f a plea
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bargain does exist, the court will inform you in open court before making a finding
on your plea whether it will follow the plea bargain.” In the part of the Plea Papers
in which appellant states she waived her right to appeal as to guilt or innocence (the
“Waiver of Appeal”), appellant does not mention any consideration given by the
State:
I understand my right to appeal but, having entered into a plea
agreement with the State and as part of that agreement before
sentencing, I waive my right to appeal from the judgment and sentence
as to guilt or innocence.
Appellant agreed to plead “guilty” to the charged offense and to plead “true” to the
enhancement paragraph. In the part of the Plea Papers in which the State could have
given consideration by recommending a sentence or agreeing to prosecute appellant
only on a lesser-included offense, the State did not check any of the first eleven items
available in the form; instead, the State checked “Other” and inserted the following
text in the blank lines:
This is an open plea of guilty and true to the enhancement paragraph.
[Appellant] shall not ask for and shall not receive a deferred
adjudication. Therefore, [appellant] shall be sentenced to a term not less
than 15 years and not more than 99 years or life and a fine not to exceed
$10,000.
The inserted language contains no reference to any consideration given by the State.
Below this language, the Plea Papers state that “[t]he above terms constitute our
agreement, and there are no agreements not set forth above.” (the “End-of-
Agreement Sentence”). Significantly, the wording on which the State relies as
consideration for the Waiver of Appeal falls below the End-of-Agreement Sentence
and above the signature line for the assistant district attorney:
I hereby join, consent to and approve of: (1) the stipulations of evidence
pursuant to Art. 1.15, C.C.P.; and (2) the waiver of jury trial pursuant to Art.
1.13, C.C.P., conditioned on the Court accepting this Plea Agreement and
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sentencing [appellant] in accordance with this Plea Agreement.
In the July Order, we concluded that under the unambiguous language of the Plea
Papers, the words on which the State relies as the bargained-for consideration were
not part of the agreement between appellant and the State because these words fell
below the End-of-Agreement Sentence. We also noted that the language on which
the State relies does not say that the State agrees that it will join, give consent to, or
approve of the waiver of jury trial or that the State is doing so in exchange for
appellant’s Waiver of Appeal. Instead, by this language the State consented to and
approved the waiver of jury trial in the manner required by article 1.13 of the Texas
Code of Criminal Procedure. See Tex. Crim. App. Pro. Ann. art. 1.13 (stating that
the attorney representing the state must consent to and approve of a defendant’s
waiver of the right to a jury trial and that this consent and approval must be “in
writing, signed by [the attorney for the State], and filed in the papers of the cause
before the defendant enters the defendant’s plea”). Though the State conditioned its
consent to the jury-trial waiver on the trial court’s acceptance of “this Plea
Agreement and sentencing the Defendant in accordance with this Plea Agreement,”
this conditional consent, which is not part of the agreement, does not show that
appellant received any bargained-for consideration in exchange for her Waiver of
Appeal.
At the hearing in which appellant pleaded “guilty,” no person mentioned any
consideration given by the State in exchange for appellant’s Waiver of Appeal.
Instead, after reciting that the case involved an open plea, the trial court confirmed
that no one had promised appellant anything:
[trial court]: Ms. Abbott, in your case — okay. It’s an open — in
exchange for your willingness to plead guilty — I take it we’ll reset this
for a punishment hearing at a later date. This would basically be an open
plea to that range of punishment, 15 years in the penitentiary up to 99
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years or life, again, understanding that no probation of any kind is an
option for the Court. Do you understand that?
[appellant]: Yes.
[trial court]: Let’s see here. Anybody promise you anything other than
that?
[appellant]: No.
After appellant had pleaded “guilty,” and at the beginning of the punishment
hearing the trial court described the case as follows:
[trial court]: Okay. We’re here on an open plea; correct?
[appellant’s attorney]: Yes, sir.
[trial court]: Technically, it was a negotiated plea just
removing deferred adjudication from the
table with the effective punishment range
being 15 years to 99 years to life and a fine
not to exceed $10,000. Correct?
[appellant’s attorney]: Correct.
Though the trial court first stated that the case involved an open plea and then
stated that it involved a negotiated plea, the trial court did not mention any
consideration given by the State. At no time during the punishment hearing did any
person mention any consideration given by the State in exchange for appellant’s
Waiver of Appeal.
In the July Order, we concluded the record in this case does not show that the
State provided appellant with a benefit as part of a bargained-for exchange that
would supply the requisite consideration for appellant’s Waiver of Appeal. See
Simon v. State, 554 S.W.3d 257, 262–63 (Tex. App.—Houston [14th Dist.] 2018, no
pet.); Jenkins v. State, 495 S.W.3d 347, 352 (Tex. App.—Houston [14th Dist.] 2016,
no pet.). The State did not agree to or recommend any punishment in the Plea Papers
or by any other means before appellant pleaded “guilty” and made the Waiver of
Appeal. Thus, appellant’s punishment remained uncertain when appellant made the
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Waiver of Appeal. The State did not agree to waive the enhancement paragraph or
allow appellant to plead “guilty” to a lesser-included offense. Appellant could not
receive the benefit of community supervision because she was not eligible based on
her “guilty” plea and plea of “true” to the enhancement paragraph. See Tex. Crim.
App. Pro. Ann. art. 42A.053. Nor could appellant obtain the benefit of deferred
adjudication because appellant agreed that she would not request or receive deferred
adjudication. Nothing in the record reflects that the State did not want to consent to
a jury-trial waiver but appellant induced the State to do so by waiving her right to
appeal. Though the State signed the Plea Papers, the State did so for the stated
purpose of joining, consenting to, and approving of the stipulations of evidence and
the waiver of jury trial. The State did not say that it agreed to be bound by the Plea
Papers, and even if the State had done so, the document does not contain any
provision in which the State gives appellant a benefit or agrees to give her a benefit.
The record does not show that the parties bargained for the State’s consent to
appellant’s waiver of a jury trial or that the State otherwise attributed negotiating
value to this purported consideration. See Simon, 554 S.W.3d at 262–63; Jenkins,
495 S.W.3d at 352. The record shows that the State did not bargain for appellant’s
Waiver of Appeal and that appellant did not know with certainty the punishment that
the trial court would assess when appellant entered her plea. In the July Order, we
concluded that the record shows appellant’s Waiver of Appeal is invalid and does
not prevent appellant from appealing as to guilt/innocence or as to punishment. See
Simon, 554 S.W.3d at 262–63; Jenkins, 495 S.W.3d at 352.
In the July Order, we noted that the cases on which the State relies differ in
key respects. First, our recent decision in Lopez v. State involved materially different
facts that prompted a different outcome. See Lopez v. State, 595 S.W.3d 897, 899–
901 (Tex. App.—Houston [14th Dist.] 2020, pet. ref’d). In Lopez, the plea papers
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contained the following language in which the defendant explicitly acknowledged
the exchange:
I understand that I have not reached an agreement with the prosecutor as to
punishment. However, in exchange for the State waiving their [sic] right to a
jury trial, I intend to enter a plea of guilty without an agreed recommendation
of punishment from the prosecutor and request that my punishment should be
set by the Judge after a pre-sentence investigation report and hearing. I
understand the state reserves the right to argue for full punishment at my
sentencing hearing. I waive any further time to prepare for trial to which I or
my attorney may be entitled. Further, in exchange for the state giving up
their [sic] right to a jury trial, I agree to waive any right of appeal which
I may have.
Id. at 900 (emphasis added by the Lopez court). Contrary to the State’s argument,
Lopez is not on point because the record in today’s case does not contain similar
evidence of a bargained-for exchange of consideration.
The facts of today’s case do not fall within the line of cases in which the
appellant negotiated an agreement with the State to obtain a benefit through the
State’s consent to the appellant’s jury-trial waiver in exchange for the appellant’s
waiver of the right to appeal. See Jenkins v. State, 495 S.W.3d 347, 352 (Tex.
App.—Houston [14th Dist.] 2016, no pet.) (“Although appellant certainly benefited
from the State’s decision to consent to the jury trial waiver, which (as in Delaney)
allowed him to seek deferred-adjudication community supervision, there is no
indication in the record that appellant negotiated an agreement with the State to
obtain this benefit in exchange for waiving his right to appeal.”).
In Jones v. State, the Court of Criminal Appeals found that the documents in
the record demonstrated sufficient bargained-for consideration where the State
agreed to abandon an enhancement paragraph, which had the effect of reducing the
defendant’s minimum punishment from twenty-five years’ confinement to five
years’ confinement. 488 S.W.3d 801, 807 (Tex. Crim. App. 2016). In today’s case
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the State did not agree to eliminate an enhancement paragraph, so the Jones case is
not on point. See id.
Finally, the State’s reliance on the Third Court of Appeals’s recent
unpublished opinion in Sabins v. State, is unwarranted, as that opinion has no
precedential value. See Tex. R. App. P. 47.7(a) (stating that “[o]pinions and
memorandum opinions not designated for publication by the court of appeals under
these or prior rules have no precedential value”); Sabins v. State, No. 03-18-00732-
CR, 2020 WL 3495859, at *3–6 (Tex. App.—Austin June 25, 2020, no pet. h.) (not
designated for publication) (mem. op.). Even if Sabins had precedential value, the
case would not be on point because the facts and circumstances of today’s case,
discussed above, differ substantially from the facts and circumstances on which the
Sabins court decided that the waiver of appeal in that case was valid.
The trial court’s certification, under Texas Rule of Appellate Procedure
25.2(d), of appellant’s right to appeal provides that this “is not a plea-bargain case,
and the defendant has the right to appeal except as to guilt/innocence.” The record
shows appellant’s Waiver of Appeal is invalid; therefore, appellant has the right to
appeal as to both guilt/innocence and as to punishment. See Simon, 554 S.W.3d at
262–63; Jenkins, 495 S.W.3d at 352. Because the certification contradicts the
appellate record, the law deems it defective. See Jones, 488 S.W.3d at 804; Dears,
154 S.W.3d at 614.
On June 12, 2020, this court issued an order abating this appeal and directing
the trial court to file an amended Rule 25.2(a)(2) certification of the defendant’s right
of appeal. Instead of filing an amended certification, the trial court ordered the clerk
of the trial court to submit a supplemental clerk’s record containing another copy of
the original certification already contained in our appellate record. Though we
understand that the trial court may disagree with our conclusion as to whether the
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Waiver of Appeal is valid, any such disagreement does not provide a valid basis for
the trial court to disregard this court’s determination that appellant’s Waiver of
Appeal is invalid or for the trial court to disregard an order from this court that the
trial court file an amended Rule 25.2(a)(2) certification of the defendant’s right of
appeal.
In the July Order, this court determined that (1) the record shows appellant’s
Waiver of Appeal is invalid; (2) appellant has the right to appeal as to both
guilt/innocence and as to punishment; and (3) the trial court’s certification that
appellant has no right to appeal as to guilt/innocence contradicts the appellate record.
This court ordered the trial court to file an amended Rule 25.2(a)(2) certification of
the defendant’s right of appeal to correct the trial court’s original, defective
certification. In today’s case, appellant filed her appellate brief before any of this
court’s orders as to the Rule 25.2(a)(2) certification. Therefore, the trial court may
amend the Rule 25.2(a)(2) certification only with this court’s leave and on the terms
prescribed by this court. See Tex. R. App. P. 25.2(f) (stating that “[a]fter the
appealing party’s brief is filed, the notice or certification may be amended only on
leave of the appellate court and on such terms as the court may prescribe”); Terrell
v. State, 264 S.W.3d 110, 113 (Tex. App.—Houston [1st Dist.] 2007, published
order).
Instead of complying this court’s July Order and amending the Rule 25.2(a)(2)
certification on the terms prescribed by this court, the Honorable Dib Waldrip,
presiding judge of the trial court signed a single-spaced, four-page amended
certification, in which Judge Waldrip explained his interpretation of the Plea Papers
and provided legal analysis in support of his conclusion that the Waiver of Appeal
is valid. Contrary to this court’s analysis in the July Order, Judge Waldrip again
certified that appellant does not have the right to appeal as to guilt/innocence.
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In Hargesheimer v. State, the trial court certified that the appellant in that case
had no right to appeal, and the intermediate court of appeals eventually agreed with
the trial court. See 182 S.W.3d 906, 907–08 (Tex. Crim. App. 2006). The Court of
Criminal Appeals disagreed with the lower courts’ analysis and concluded that
appellant had the right to appeal. See id. at 911–13. The State asserted that the Court
of Criminal Appeals had to affirm the lower court judgment because the trial court’s
Rule 25.2(a)(2) certification was supported by the record and not defective. See id.
at 912–13. The Hargesheimer court disagreed and concluded that the certification
was not supported by the record. See id. at 913. The high court concluded that under
the circumstances presented in that case, “the trial judge must check the box on the
certification form indicating that the case ‘is not a plea-bargain case, and the
defendant has the right of appeal.’” Id. at 913. The Hargesheimer court reversed the
court of appeals’s judgment and instructed the trial judge to issue a new Rule
25.2(a)(2) certification designating the case as not a plea-bargain case and one in
which the defendant has the right of appeal. See id.
In Terrell v. State, in the Rule 25.2(a)(2) certification, the trial court certified
that the cases were plea-bargain cases and that appellant had no right of appeal. See
Terrell, 264 S.W.3d at 112. The First Court of Appeals concluded that the cases
were not plea-bargain cases and that appellant had the right to appeal. See id. at 113.
Thus, the appellate court concluded that the trial court’s certification was defective.
See id. at 113. Relying upon the court’s authority under Rule 25.2(f) and the high
court’s opinion in Hargesheimer, the First Court ordered the trial court to amend the
Rule 25.2(a)(2) certifications to show that appellant had the right of appeal in each
case. Id. at 114; see Tex. R. App. P. 25.2(f); Hargesheimer, 182 S.W.3d at 911–13.
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We have determined that the record shows appellant’s Waiver of Appeal is
invalid and that appellant has the right to appeal as to both guilt/innocence and as to
punishment. The case is still ABATED, and we ORDER and DIRECT the
Honorable Dib Waldrip to file an amended Rule 25.2(a)(2) certification stating that
this criminal case is not a plea-bargain case, and the defendant has the right of appeal
as to both guilt/innocence and as to punishment. See Tex. R. App. P. 25.2(f);
Hargesheimer, 182 S.W.3d at 911–13; Terrell, 264 S.W.3d at 112–14. Under
fundamental principles of stare decisis, a district court judge is bound by and must
follow the order of a court of appeals in an appeal from a case in the judge’s court,
even if the judge disagrees with the court of appeals’s ruling and even if the Court
of Criminal Appeals, in the future, may review the court of appeals’s ruling. See
State ex rel. Healey v. McMeans, 884 S.W.2d 772, 774 (Tex. Crim. App. 1994);
Perez v. State, 495 S.W.3d 374, 392 (Tex. App.—Houston [14th Dist.] 2016, no
pet.).
The trial court’s amended certification shall be included in a supplemental
clerk’s record and transmitted to this court no later than October 9, 2020. The appeal
will be reinstated when the supplemental clerk’s record has been filed. This court
may reinstate the appeal on the motion of any party or on its own motion.
PER CURIAM
Panel consists of Chief Justice Frost and Justices Wise and Hassan.
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