Court of Appeals of Texas, Fifth District, Dallas
Proceeding from the 292nd Judicial District Court Dallas
County, Texas Trial Court Cause No. F13-34236
Justices Lang, Evans, and Stoddart
original proceeding, relator asks the Court to order the
trial court to "comply with Tex.R.App.P. 25.2(a), (d),
" to provide a free record, and to allow an appeal of
multiple pretrial motions. Relator complains that the trial
court's certification of defendant's right to appeal
did not give him a right to appeal matters raised by written
motion filed and ruled on before trial, as permitted by Rule
25.2(a)(2)(A). Tex.R.App.P. 25.2(a)(2)(A) (in a plea bargain
case, a defendant may appeal "matters that were raised
by written motion filed and ruled on before trial").
Relator's petition for writ of mandamus does not comply
with the rules of appellate procedure. See Tex. R.
App. P. 52.3(j), 52.3(k), 52.7(a)(1). Although these
deficiencies alone constitute sufficient reason to deny
mandamus relief, in the interest of judicial economy we
address the petition.
entered a negotiated plea of guilty to the offense of
possession of four grams or more but less than 200 grams of
gamma hydroxybutyrate. Under the plea agreement, appellant
signed a judicial confession and pleaded guilty to the
offense in exchange for the State's agreement to
recommend punishment at five years. As further consideration
for the plea bargain, appellant waived his right to appeal.
After finding appellant guilty, the trial court assessed
punishment at five years in prison in accordance with the
plea agreement. The trial court's certification of
defendant's right of appeal states that the case is a
plea bargain case, defendant has no right of appeal, and
defendant waived the right of appeal. Relator appealed, and
this Court dismissed the appeal for want of jurisdiction on
March 8, 2017. See Bonner v. State, No.
05-16-01441-CR, 2017 WL 912149, at *1 (Tex. App.-Dallas Mar.
8, 2017, no. pet. h.) (mem. op.). Relator now seeks a writ of
mandamus directing the trial court to amend its certification
and provide him with a right to appeal rulings on pretrial
demonstrate entitlement to a writ of mandamus in a criminal
case, a relator must establish that the trial court failed to
perform a ministerial duty, and that the relator has no other
adequate legal remedy. See State ex rel. Hill v. Court of
Appeals for the Fifth Dist., 34 S.W.3d 924, 927 (Tex.
Crim. App. 2001).
rule 25.2(a)(2)(A) grants defendants who plead guilty as part
of a plea bargain the right to appeal pretrial motions filed
and ruled on before trial, a defendant may waive this right,
as long as the waiver is made "voluntarily, knowingly,
and intelligently." Marsh v. State, 444 S.W.3d
654, 660 (Tex. Crim. App. 2014) (citing Tex. Code Crim. Proc.
art. 1.14 ("The defendant in a criminal prosecution for
any offense may waive any rights secured him by law.")
and Ex parte Broadway, 301 S.W.3d 694, 697 (Tex.
Crim. App. 2009)). When a defendant waives his right of
appeal as part of an agreement on sentencing and the
agreement is followed by the court, his waiver is made
knowingly, intelligently, and voluntarily. See Oliver v.
State, No. 05-14-00308-CR, 2015 WL 1862920, at *2 (Tex.
App.-Dallas Apr. 22, 2015, no pet.) (citing Ex parte
Delaney, 207 S.W.3d 794, 798-99 (Tex. Crim. App. 2006)).
For example, in Marsh, the defendant signed a plea
agreement that explicitly set out the defendant's waiver
of his right to appeal matters raised by written motions
filed and ruled on before trial, verbally acknowledged the
general waiver of his appellate rights at the plea hearing,
signed the trial court's certification of right to
appeal, and acknowledged at the sentencing hearing that he
indicated by his signature that if the court abided by the
plea agreement, then the defendant would waive his right to
appeal. 444 S.W.3d at 656. The defendant later moved for new
trial and for amendment of the certification, claiming that
he never waived his right to appeal the motion to suppress as
part of the plea agreement. Id. The Court of
Criminal Appeals disagreed, holding that the defendant
knowingly and voluntarily waived his right to appeal the
motion to suppress by signing the plea agreement and
certification of right of appeal. Id. at 660. The
Beaumont court of appeals reached a similar decision in
In re Arehart, No. 09-11-00140-CV, 2011 WL 1420930,
at *1 (Tex. App.-Beaumont Apr. 14, 2011, orig. proceeding)
(mem. op.). In Arehart, the court denied a petition
for writ of mandamus seeking an amended certification to
permit appeal of pretrial motion for speedy trial where the
relator signed written plea admonishments as well as the
trial court's certification, both of which affirmatively
stated that relator waived the right of appeal. Id.
signed the plea agreement that included the statement that he
understands that he has a right to appeal but does
"expressly, voluntarily, knowingly, and intelligently
give up and waive my right to any appeal if the
Court follows the terms of the State's recommendation as
to sentencing." (emphasis added). Relator also signed
the trial court's certification of defendant's right
of appeal, which did not check the box allowing appeal of
pretrial motions and, instead, checked the boxes stating that
relator has no right of appeal and has waived the right of
appeal. By signing the trial court's certification, he
also acknowledged that he had been informed of his rights
concerning any appeal. Here, like in Marsh and
Arehart, the signing of the plea agreement and the
certification show that relator voluntarily waived the ...