Jeremy Lynn Foraker v. the State of Texas ( 2021 )

NO. 12-21-00013-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JEREMY LYNN FORAKER, § APPEAL FROM THE 87TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § ANDERSON COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Jeremy Lynn Foraker pleaded “guilty” to assault by impeding breath or circulation
against a family member, with a previous conviction. The trial court sentenced him to eight
years in prison. Appellant filed a notice of appeal to challenge the denial of his pretrial motion
to suppress.
The clerk’s record has been filed. The trial court’s certification of Appellant’s right to
appeal states that this is a plea bargain case and Appellant has no right of appeal. The
certification is signed by Appellant and his counsel. See TEX. R. APP. P. 25.2(d). On April 22,
2021, the Clerk of this Court notified Appellant that the clerk’s record failed to show this Court’s
jurisdiction in that it includes the trial court’s certification that this is a plea bargain case and
Appellant has no right of appeal. See TEX. R. APP. P. 37.1. Based on the certification, the notice
stated that it appears the appeal should be dismissed. The notice warned that the appeal would
be referred to the Court for dismissal unless, on or before May 3, Appellant informed the Court
in writing of any grounds for continuing the appeal. Appellant filed a motion to extend the time
for responding to the notice, which this Court granted to May 19. On May 19, the trial court
signed a letter to this Court, which stated that after reviewing the file and information provided
by Appellant’s court appointed counsel, the trial court determined that Appellant was not entitled
to an appeal.
Our review of the record indicates that the plea agreement contained a punishment
recommendation of eight years in prison. The document entitled “admonishments, voluntary
statements, waivers, stipulation[s], judicial confession and plea agreement-felony” contained the
following pertinent provisions:
…If the Court follows the plea agreement and assesses the agreed punishment the defendant
cannot appeal the case without the Court’s permission unless based on motions previously filed.
…
This is a plea bargain case and the defendant has NO right of appeal. []I have received a copy of
this certification. I have also been informed of my rights concerning any appeal of this criminal
case, including any right to file a pro se petition for discretionary review pursuant to Rule 68 of
the Texas Rules of Appellate Procedure. I have been admonished that my attorney must mail a
copy of the court of appeal’s judgment and opinion to my last known address and that I have only
30 days in which to file a pro se petition for discretionary review in the court of appeals. TEX. R.
APP. P. 68.2 I acknowledge that, if I wish to appeal this case and if I am entitled to do so, it is my
duty to inform my appellate attorney, by written communication, of any change in the address at
which I am currently living or any changes in my current prison unit. I understand that, because of
appellate deadlines, if I fail to timely inform my appellate attorney of any change in my address, I
may lose the opportunity to file a pro se petition for discretionary review.
(Emphasis added). Appellant and his counsel signed this document. Attached to the document
is an order accepting plea/certification, which states as follows:
…The Defendant was admonished that he had 10 days in which to file a Motion for New Trial or
Motion in Arrest of Judgment; the Defendant waived such time and requested to be sentenced
immediately, and sentence was imposed. The Defendant was then informed that he had 30 days in
which to file a Motion of Appeal and if indigent, counsel could be appointed to appeal. The
Defendant then in open Court waived his right to appeal in writing. Defendant was admonished
pursuant to TRAP 25.2(a)(2). The Court approves the written waiver of jury trial, all waivers of
rights, and the defendant’s judicial confession.
(Emphasis added). At the plea hearing, the trial court asked Appellant, “Do you understand that
if you voluntarily waive your rights and plead guilty that you lose your right to appeal except
under very limited circumstances?” Appellant acknowledged his understanding. The trial court
also admonished Appellant that “if you voluntarily waive your rights []you lose your right to
appeal except under very limited circumstances,” and Appellant again confirmed his
understanding. The judgment states, “Appeal waived. No permission to appeal granted.”
Appellant filed his motion to suppress on November 14, 2019, the trial court denied the
motion on October 20, 2020, and Appellant pleaded “guilty” on January 14, 2021. The record
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does not contain an express waiver of the right to appeal pretrial motions, such as the denial of
Appellant’s motion to suppress, and suggests that Appellant may have retained his right to
appeal under Rule 25.2(a)(2)(A). See TEX. R. APP. P. 25.2(a)(2)(A) (in plea bargain case, i.e., in
which defendant’s plea was guilty or nolo contendere and punishment did not exceed that
recommended by prosecutor and agreed to by defendant, a defendant may appeal only those
matters raised by written motion filed and ruled on before trial); see also Marsh v. State, 444
S.W.3d 654, 660 (Tex. Crim. App. 2014) (Rule 25.2(a)(2)(A) grants defendants who plead guilty
as part of a plea bargain the right to appeal pretrial motions; a defendant may waive this right, as
long as the waiver is voluntarily, knowingly, and intelligently made); see also Ex parte Peyton,
No. WR-91,328-01, 2020 WL 4810764, at *1 (Tex. Crim. App. Aug. 19, 2020) (per curiam
order, not designated for publication) (“Even though he pleaded guilty pursuant to a plea
agreement on punishment, Applicant had the right to appeal the denial of his pretrial motions
after he was sentenced unless he expressly waived this right”). Accordingly, we concluded that
the record was not entirely clear as to whether the certification was correct that Appellant had no
right of appeal. See Dears v. State, 154 S.W.3d 610, 614 (Tex. Crim. App. 2005) (holding that
court of appeals should review clerk’s record to determine whether trial court’s certification is
accurate). We remanded to the trial court to (1) issue a new certification, or (2) if Appellant is
not entitled to appeal, issue findings of fact and conclusions of law explaining how Appellant
waived his right to appeal the denial of his pretrial motion to suppress.
The trial court subsequently issued findings of fact, including findings that Appellant
“understood that if the Court accepted the plea bargain, he would lose his right to appeal except
under limited circumstances,” the plea papers and the certification state Appellant has no right of
appeal, Appellant has not provided a “request to appeal his case outlining any limited
circumstances that would cause this court to grant permission to appeal,” and the court is not
granting permission to appeal. The trial court concluded, as a matter of law, that Appellant has
no right to appeal.
When the defendant is the appellant, the record must include the trial court’s certification
of the defendant’s right of appeal. TEX. R. APP. P. 25.2(d). This Court must dismiss an appeal
“if a certification that shows the defendant has the right of appeal has not been made part of the
record.” Id. While this Court may require a trial court to certify whether there is a right to
appeal, we may not dictate the contents of the certification. See Greenwell v. Court of Appeals
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for Thirteenth Judicial Dist., 159 S.W.3d 645, 650 n.24 (Tex. Crim. App. 2005) (orig.
proceeding). Absent a certification granting Appellant the right to appeal, we must dismiss the
appeal. See TEX. R. APP. P. 25.2(d); see also Menefee v. State, 287 S.W.3d 9, 12 n.12 (Tex.
Crim. App. 2009) (consistent with Dears, appellate court could examine certification for
defectiveness and, if appropriate, use Rules 37.1 and 34.5(c) to obtain new certificate; if new
certificate were to certify that appellant waived right to appeal, then appellate court could only
exercise jurisdiction to dismiss appeal under Rule 25.2(d)).
Opinion delivered June 17, 2021.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JUNE 17, 2021
NO. 12-21-00013-CR
JEREMY LYNN FORAKER,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 87th District Court
of Anderson County, Texas (Tr.Ct.No. 87CR-19-34175)
THIS CAUSE came on to be heard on the appellate record, and the same
being considered, it is the opinion of this Court that it is without jurisdiction of the appeal, and
that the appeal should be dismissed.
It is therefore ORDERED, ADJUDGED and DECREED by this Court that
this appeal be, and the same is, hereby dismissed; and that this decision be certified to the court
below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.