Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 292nd Judicial District Court Dallas County,
Texas Trial Court Cause Nos. F18-51915-V, F18-51916-V,
F18-51917-V, F18-75237-V, F18-75268-V & F18-24000-V
Angel Rueda appeals his convictions for four aggravated
robberies, possession of a controlled substance, and theft of
a firearm. Each clerk's record contains the trial
court's certification of appellant's right to appeal.
The certification for appeal #05-18-01547-CR (trial court
#F18-51917-V) has no boxes checked. The remaining
certifications all state "the defendant has waived the
right to appeal." After reviewing the certifications,
the clerk's records, and the reporter's records, the
Court has concerns regarding the accuracy of the
certification of the right to appeal is defective if it is
contrary to the record before the appellate court. Dears
v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005). An
appellate court is obligated to review the record to
determine whether the certification of the right to appeal is
accurate or contrary to the record before the court and
therefore defective. Jones v. State, 488 S.W.3d 801,
805 (Tex. Crim. App. 2016).
the alleged waiver is executed as part of a plea agreement,
we look to the written agreement and the formal record to
determine the terms of the parties' agreement.
Id. A waiver of the right to appeal made before
sentencing is valid and enforceable under two conditions: (1)
if the defendant knows the punishment that will be assessed
at the time he executes the waiver or (2) the State provides
appellant with consideration in exchange for the waiver.
See Ex parte Broadway, 301 S.W.3d 694, 699 (Tex.
Crim. App. 2009); Blanco v. State, 18 S.W.3d 218,
219- 20 (Tex. Crim. App. 2000).
present cases, the September 10, 2018 plea agreement forms
that appellant signed each state that appellant's plea is
open as to community supervision, deferred adjudication,
fine, restitution and "other" with the handwritten
notation "treatment." On the second page, there is
a check mark in the box that states:
I understand that I do not have a right to appeal to the
Court of Appeals if the Court follows the terms of the
State's recommendation as to sentencing. I understand
that I do have a right to appeal to the Court of Appeals in
any open plea. However, after consulting with my attorney, I
do expressly, voluntarily, knowingly, and intelligently give
up and waive my right to any appeal.
nothing in the clerk's records or reporter's record
shows appellant and the State bargained for an agreed
punishment. Furthermore, the record does not show the State
made any recommendations on punishment or provided appellant
with consideration for his waivers of the right to appeal. At
the hearing on September 10, 2018, appellant pleaded guilty
and the pleas were accepted. The cases were then passed for
December 18, 2018, appellant appeared in court. The trial
court stated the parties were there on "an open plea for
sentencing." Witnesses testified for each side. At the
conclusion of the trial, the trial court found appellant
guilty and assessed punishment at 180 days in state jail for
cause numbers 05-18-01545-CR (trial court #F18-51917-V) and
05-18-01550-CR (trial court #F18-24000-V); the trial court
assessed punishment at fifteen years in prison for each of
the four remaining cases. The following then occurred:
THE COURT: I'm going to hand you a copy of the Trial
Court Certification of your right to appeal. You appear to
have signed all of those. Did you understand all of those
when you signed them, Mr. Rueda?
DEFENDANT: Yes, sir.
THE COURT: Can you afford an attorney?
DEFENDANT: No, sir.
THE COURT: For ...