Chad Steven Ivey v. State ( 2020 )

NO. 12-19-00248-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
CHAD STEVEN IVEY, § APPEAL FROM THE 124TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § GREGG COUNTY, TEXAS
MEMORANDUM OPINION
Chad Steven Ivey appeals his conviction for driving while intoxicated, third or more. In a
single issue, Appellant argues the trial court abused its discretion in denying his motion to
suppress. We dismiss the appeal.
BACKGROUND
Pursuant to a plea agreement, Appellant pleaded “guilty” to driving while intoxicated, third
or more, and was sentenced to twenty years in prison. At the plea hearing, Appellant
acknowledged that he cannot appeal if the trial court accepted the plea agreement. After accepting
the plea agreement, the trial court informed Appellant that he had no right of appeal. The clerk’s
record contains a stipulation of evidence and plea admonishments, both signed by Appellant and
his counsel. The admonishments include Appellant’s initials next to a sentence withdrawing
pretrial motions and waiving his right to appeal. On June 20, 2019, the trial court signed a
certification of the right to appeal, which stated that this “is a plea agreement case, and the
defendant has NO RIGHT OF APPEAL.” The certification was also signed by Appellant and his
counsel. Appellant subsequently filed a pro se notice of appeal.
On July 23, after Appellant failed to file the required docketing statement, this Court issued
an order requiring the trial court to conduct a hearing to determine the cause of Appellant’s failure
to file the docketing statement, whether Appellant abandoned the appeal, and whether Appellant
was entitled to the appointment of counsel. At that hearing, the trial court appointed an attorney
to represent Appellant on appeal. On July 29, the trial court signed a certification stating that this
“is not a plea agreement case, and the defendant has the right of appeal.”
After the parties each filed appellate briefs, the State argued that Appellant waived the right
to appeal and the July 29 certification is erroneous. 1 Accordingly, this Court remanded the case to
the trial court for clarification of the conflict between the record and the certification. The trial
court then signed an amended certification that states this “is a plea bargain case, and the defendant
has NO right of appeal” and the “defendant has waived the right of appeal.” The certification is
signed by the trial court, but not Appellant or his counsel. The Clerk of this Court subsequently
contacted the Gregg County District Clerk’s Office and learned that the certification was emailed
to Appellant’s counsel for signature, but the Clerk’s Office received no signed certification in
response to that email.
CERTIFICATION OF RIGHT TO APPEAL
The trial court shall enter a certification of the defendant’s right of appeal each time it
enters a judgment of guilt or other appealable order other than an order appealable under Chapter
64, Texas Code of Criminal Procedure. TEX. R. APP. P. 25.2(a)(2). Ordinarily, in a plea bargain
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 the defendant, the defendant may
appeal only: (1) those matters raised by written motion filed and ruled on before trial, (2) after
getting the trial court’s permission to appeal, or (c) where the specific appeal is expressly
authorized by statute. Id. However, when a defendant waives this limited right to appeal, the
defendant may appeal only if the trial court later gives its express permission. See Willis v. State,
121 S.W.3d 400, 403 (Tex. Crim. App. 2003); Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim.
App. 2003). As previously discussed, the record demonstrates that this is a plea bargain case and
Appellant withdrew pretrial motions and waived the right of appeal. After requesting that the trial
court clarify the conflict between its July 29 certification and the record, the trial court signed a
certification stating that this is a plea bargain case, “defendant has NO right of appeal,” and
1
The State incorrectly referred to the date of the certification as “July 9.”
2
“defendant has waived the right of appeal.” This certification is consistent with the record and the
record does not otherwise indicate the trial court gave Appellant permission 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); see Cortez v. State, 420 S.W.3d 803,
805 (Tex. Crim. App. 2013) (certification must be signed by defendant). 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.” TEX. R. APP. P. 25.2(d).
Based on our review of the record, the trial court’s certification appears to accurately state
that Appellant does not have the right to appeal. 2 See Dears v. State, 154 S.W.3d 610, 614-15
(Tex. Crim. App. 2005) (holding that court of appeals should review clerk’s record to determine
whether trial court’s certification is accurate). Because the trial court did not grant Appellant the
right to appeal his conviction, we dismiss the appeal. See TEX. R. APP. P. 25.2(d).
JAMES T. WORTHEN
Chief Justice
Opinion delivered January 31, 2020.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
2 The certification shall include a notice that the defendant has been informed of his rights concerning an
appeal, as well as any right to file a pro se petition for discretionary review, and the notification shall be signed by the
defendant. TEX. R. APP. P. 25.2(d); see Cortez v. State, 420 S.W.3d 803, 805 (Tex. Crim. App. 2013). The certification
in this case is not signed by the defendant. “[A] defective certification should include a certification which is correct
in form but which, when compared with the record before the court, proves to be inaccurate.” Dears v. State, 154
S.W.3d 610, 614 (Tex. Crim. App. 2005). Although the certification is technically incorrect in form, most importantly,
it is accurate when compared to the record.
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JANUARY 31, 2020
NO. 12-19-00248-CR
CHAD STEVEN IVEY,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 124th District Court
of Gregg County, Texas (Tr.Ct.No. 47649-B)
THIS CAUSE came to be heard on the appellate record; and the same being
considered, it is the opinion of this court that this 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.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
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