Jennifer Sue Witteveen v. State ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-20-00020-CR
___________________________
JENNIFER SUE WITTEVEEN, Appellant
V.
THE STATE OF TEXAS
On Appeal from Criminal District Court No. 1
Tarrant County, Texas
Trial Court No. 1593748D
Before Sudderth, C.J.; Gabriel and Kerr, JJ.
Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
Appellant Jennifer Sue Witteveen attempts to appeal from her conviction of
theft of property of $150,000 or more but less than $300,000 from a nonprofit
organization, a first-degree felony, for which she was sentenced to 8 years’
confinement and to payment of restitution in the amount of $295,667.90.1 See Tex.
Penal Code Ann. § 31.03(a), (e)(6)(A), (f)(3)(B).
The trial court’s judgment states that this was an “OPEN PLEA WITH PSI;
WAIVE COUNT 2.” Count 2 of Appellant’s indictment alleged misapplication of
fiduciary property in an amount of $30,000 to $150,000, a third-degree felony.2 The
written plea admonishments that Appellant signed reflect that her plea was
“knowingly, freely, and voluntarily entered,” that her counsel provided her “fully
effective and competent representation,” and that she gave up and waived “any and all
rights of appeal in this case.”
1
The punishment range for theft of property of a value of $150,000 or more
but less than $300,000 is usually that of a second-degree felony, see Tex. Penal Code
Ann. § 31.03(e)(6)(A), but the punishment range here was increased to that of a first-
degree felony because the property’s owner was a nonprofit organization at the time
Appellant appropriated the property. See id. § 31.03(f)(3)(B). The punishment range
for a second-degree felony is not less than 2 years and not more than 20 years and up
to a $10,000 fine. See id. § 12.33. The punishment range for a first-degree felony is
not less than 5 years and not more than 99 years or life and up to a $10,000 fine. See
id. § 12.32.
The punishment range for a third-degree felony is not less than 2 years and
2
not more than 10 years and up to a $10,000 fine. See Tex. Penal Code Ann. § 12.34.
2
Appellant subsequently filed a motion for new trial in which she acknowledged
that she had waived her right to appeal but argued that she had received ineffective
assistance of counsel when she originally pleaded guilty on November 1 to a lesser
charge (theft of property of $30,000 or more but less than $150,000) and then pleaded
guilty on November 11 to the greater charge. The trial court denied the motion after
an evidentiary hearing.3
The trial court’s initial certification of Appellant’s right of appeal stated that the
case was not a plea-bargain case and that Appellant had the right of appeal. But after
this court notified the parties that the certification appeared to be defective because
Appellant had signed written waivers of her right to appeal and because there
appeared to have been a charge (not plea) bargain, the trial court filed an amended
certification. The amended certification stated that this “is a plea-bargain case, and
the defendant has NO right of appeal.” The trial court subsequently filed another
3
At the hearing, Appellant’s trial counsel agreed that he had not researched or
advised Appellant on the effect of the Double Jeopardy Clause but stated that
Appellant “had always known that . . . the proper charge which she was supposed to
be going forth on was the first degree,” that they had had many discussions about the
first-degree offense, that Appellant did not contest or dispute how much money she
had taken, which was more than $150,000, and that Appellant’s ultimate desire had
been for community supervision. Appellant agreed that she had understood prior to
November 1 that her theft charge had been for property valued at between $150,000
and $300,000 but said that between November 5 and 11, her counsel did not discuss
double jeopardy with her and that on November 11, she had not believed that she had
any option other than to plead guilty. Appellant asserted that if she had known about
the double-jeopardy bar, she would have made a materially different decision.
3
amended certification, stating that “the defendant has waived in writing the right of
any and all appeal.”
We notified Appellant that we questioned our jurisdiction over her attempted
appeal. See Tex. R. App. P. 44.3. Appellant responded that the record is devoid of
any evidence that she waived her right to appeal in exchange for anything. However,
the record reflects that Appellant entered a charge bargain. Our place is to decide
whether there was a charge bargain, not whether it was a good bargain. See Mayfield v.
State, No. 02-19-00343-CR, 2019 WL 6335421, at *2 (Tex. App.—Fort Worth Nov.
27, 2019, no pet.) (mem. op., not designated for publication). Waiver of the second
count resulted in Appellant’s facing only one conviction and one sentence, whereas
before the plea bargain, she faced two convictions and two sentences. See Kennedy v.
State, 297 S.W.3d 338, 342 (Tex. Crim. App. 2009) (observing that charge-bargain
agreement was entered into when appellant agreed to plead guilty to aggravated
assault on a peace officer with a deadly weapon in exchange for dismissal of first-
degree attempted capital murder and third-degree deadly conduct charges because
“[u]nder the plea-bargain agreement, [the appellant] was subject to a single
punishment for a first degree felony offense”).
Because an appeal must be dismissed if the trial court’s certification does not
show that the defendant has a right of appeal, we dismiss the appeal. See Tex. R. App.
P. 25.2(d), 43.2(f); Jones v. State, 488 S.W.3d 801, 807 (Tex. Crim. App. 2016).
4
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: October 29, 2020
5