Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 401st Judicial District Court Collin County,
Texas Trial Court Cause No. 401-83842-2017
J. SCHENCK, PRESIDING JUSTICE
neither appellant Quinton Gold Hodge nor the State discuss
any jurisdictional issues, this Court must independently
satisfy itself that jurisdiction exists. See Harper v.
State, 567 S.W.3d 450, 453 (Tex. App.-Fort Worth 2019,
no pet.). Hodge was indicted for the offenses of attempt to
commit capital murder with a deadly weapon (count I) and
aggravated robbery (count II). The record shows that Hodge
signed an "open plea" that states he agreed to plead
guilty to count I in exchange for the State agreeing to
abandon count II. The "open plea" admonished that
"If the punishment assessed does not exceed the
agreement between you and the prosecutor, the [trial court]
must give its permission to you before you may appeal on any
matter in this case except for those matters raised by
written motions prior to trial." Under the heading
"Defendant's Waiver of Rights and Judicial
Confession," Hodge agreed to "Waive the right to
appeal to the Court of Appeals."
hearing on Hodge's plea took place over two days. On the
first day, the trial court admonished Hodge that "[A]s
long as [the trial court] assess[es] your punishment
somewhere within the range, five to 99 or life and a fine of
up to $10, 000, there's not a whole lot you can do about
complaining about that punishment." However, on the
second day, at the conclusion of the hearing on punishment,
the trial court advised Hodge that he had:
[T]he right to appeal the judgment of th[e] [trial] court. If
[he] desire[d] to appeal, [he] must give written notice of
appeal to the clerk of th[e] court within the time period
specified by the Texas Rules of Appellate Procedure;
that's generally 30 days from the date of sentence.
If [he] [is] indigent, and [he is], [the trial court] will
appoint an attorney to represent [him] on appeal. If [he]
[is] not indigent, [he] will be required to pay for [his] own
attorney and pay for the appellate record.
If [his] appeal is unsuccessful, [he] ha[s] the right to file
a pro se petition for discretionary review with the Court of
Criminal Appeals in Austin, again, within the time period
specified by the Texas Rules of Appellate Procedure.
trial court's judgment states that the terms of the plea
bargain were "open plea; state abandons count II,"
but does not mention Hodge's right to appeal. Also, the
record shows that the trial court signed a certification of
Hodge's right to appeal, which certifies this criminal
case "is not a plea-bargain case, and [Hodge] has the
right to appeal."
term "open plea" is an imprecise legal term of art
as it is often used colloquially to refer to a myriad of
different pleas that a defendant might enter. See
Harper, 567 S.W.3d at 454. In some instances it suggests
a plea where there was a charge bargain, but not a sentence
bargain. See id. In others, it refers to a plea
where no plea bargaining of any kind has occurred. See
id. The common denominator is that in both types of
"open plea," the defendant pleads guilty without an
agreement as to the punishment he will receive. See
id. However, they differ in that sometimes the guilty
plea is the product of a bargain and sometimes it is not.
See id. So, although the term "open plea"
accurately conveys that a defendant's precise punishment
is unresolved, it obscures the process that resulted in the
guilty plea. See id. at 454-55.
"plea bargain" includes both a "charge
bargain" and "sentence bargain." See
Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App.
2003); Harper, 567 S.W.3d at 455. A "charge
bargain" refers to an arrangement whereby the State
agrees to drop some of the charged counts or reduce the
charge to a less serious offense in exchange for a plea of
guilty or nolo contendere. See Shankle, 119 S.W.3d
at 813; Harper, 567 S.W.3d at 455. A "sentence
bargain" refers to an agreement between the State and
the defendant where the defendant promises to plead guilty or
nolo contendere to the pending charge or counts in exchange
for a lesser sentence. See Shankle, 119 S.W.3d at
813; Harper, 567 S.W.3d at 455. Either plea may
affect the defendant's right to appeal under the code of
Texas Code of Criminal Procedure article 44.02 provides:
A defendant in any criminal action has the right of appeal .
. . provided, however, before the defendant who has been
convicted upon either his plea of guilty or nolo contendere
before the court and the court, upon the election of the
defendant, assesses punishment and the punishment does not
exceed the punishment recommended by the prosecutor and
agreed to by the defendant and his attorney may prosecute his
appeal, he must have permission of the trial court.
Tex. Code Crim. Proc. Ann. art. 44.02. Also, Texas Rule of
Appellate Procedure 25.2(a)(2) provides, in part:
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 ...