Zachery Halsell v. State ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00280-CR
ZACHERY HALSELL APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Without agreeing with the State on the precise term of his punishment,
appellant Zachery Halsell pled guilty to violating a civil commitment order.2
Specifically, appellant pled guilty to count two of his indictment, which alleged
that he was under civil commitment as a sexually violent predator and violated
the commitment by engaging in anonymous and casual sex. In exchange, the
1
See Tex. R. App. P. 47.4.
2
See Tex. Health & Safety Code Ann. § 841.085(a) (Vernon 2010).
State waived all of the indictment’s other paragraphs except for a deadly weapon
notice (to which appellant pled not true) and a habitual offender notice (to which
he pled true).
After receiving evidence from the parties, the trial court convicted appellant
and found that the deadly weapon notice (which was based on the transmission
of HIV-infected bodily fluid) and habitual offender notice (which was based on
appellant’s previous felony convictions) were true. The trial court sentenced
appellant to forty-five years’ confinement. Appellant filed his notice of appeal.
The trial court certified appellant’s right to appeal, originally stating that this
was not a plea-bargained case. Appellant’s appointed appellate counsel,
however, filed a motion to abate the appeal, explaining that appellant may have
entered a plea bargain when he pled guilty in exchange for the State’s
agreement to waive other allegations in the indictment. Appellant’s counsel
wanted the trial court to determine whether the certification of appellant’s right to
appeal should be amended. We abated the appeal, and the trial court amended
its certification to state that this case “is a plea-bargained case and the defendant
has NO right of appeal.”
We agree with the trial court that this case was plea bargained within the
meaning of rule of appellate procedure 25.2(a)(2). See Tex. R. App. P.
25.2(a)(2); Kennedy v. State, 297 S.W.3d 338, 342 (Tex. Crim. App. 2009);
Shankle v. State, 119 S.W.3d 808, 813–14 (Tex. Crim. App. 2003). In a case
subject to that rule, a defendant may appeal only after getting the trial court’s
2
permission or on matters that were raised by written motion filed and ruled on
before trial. See Tex. R. App. P. 25.2(a)(2). Therefore, in accordance with the
trial court’s amended certification, which does not indicate that either of those two
circumstances applies here, we dismiss the appeal. See Tex. R. App. P.
25.2(a)(2), (d), 43.2(f); Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App.
2006); Shankle, 119 S.W.3d at 814.
PER CURIAM
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 30, 2010
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