Sarah King Perero v. the State of Texas ( 2021 )

NO. 12-21-00067-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
SARAH KING PERERO, § APPEAL FROM THE 7TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
PER CURIAM ORDER
Pursuant to a plea agreement, Sarah King Perero pleaded “guilty” to theft of property in
an amount more than $750 but less than $2,500. In accordance with the agreement, the trial
court assessed punishment at six months in state jail. Appellant filed two notices of appeal to
challenge the judgment and sentence, as well as the denial of her motion for judgment nunc pro
tunc.
The clerk’s record has been filed and contains a waiver of appeal signed by Appellant.
The trial court’s certification states that this is a plea bargain case and Appellant has no right of
appeal. The certification is signed by Appellant and her counsel. See TEX. R. APP. P. 25.2(d).
The clerk’s record does not otherwise indicate that the trial court gave Appellant permission to
appeal. See TEX. R. APP. P. 25.2(d).
In a plea bargain case, i.e., 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, a defendant may appeal only: (A) those matters raised by written motion filed and
ruled on before trial, (B) after getting the trial court’s permission to appeal, or (C) where the
specific appeal is expressly authorized by statute. TEX. R. APP. P. 25.2(a)(2); see TEX. CODE
CRIM. PROC. ANN. art. 44.02 (West 2018). Here, Appellant maintains that the certification is
defective because the trial court assessed a sentence that exceeded the punishment
recommendation by awarding four days of jail time credit when she was entitled to a total of 122
days of credit. For this reason, she argues that her “case is ‘not a plea bargain case’ and her right
of appeal is authorized by Article 44.02 [of the Texas Code of Criminal Procedure] and Rule
25.2 [of the Texas Rules of Appellate Procedure].” She asks this Court to direct the trial court to
correct the certification to state that this is not a plea bargain case and she has the right to appeal.
Appellant presented her argument to the trial court that she did not receive all the jail
time credits to which she is entitled, but the trial court denied her motion for judgment nunc pro
tunc, apparently concluding that Appellant was not entitled to the extra jail time credits because
the time she spent in jail on an assault case was not confinement for the theft case in which she
was ultimately tried and convicted. 1 See TEX. CODE CRIM. PROC. ANN. art 42.03 § 2(a)(1) (West
Supp. 2020) (convicting judge shall give defendant credit on sentence for time spent in jail for
the case, from the time of arrest and confinement until sentence); see also Ex parte Crossley, 586
S.W.2d 545, 546 (Tex. Crim. App. 1979) (en banc) (“On the face of it, the applicant was not
confined in the same cause for which he was sentenced”); Cooper v. State, No. 05-19-00229-CR,
2020 WL 3496365, at *3 (Tex. App.—Dallas June 29, 2020, no pet.) (mem. op., not designated
for publication); In re Carpenter, No. 12-13-00146-147-CR, 2013 WL 6388467, at *2 (Tex.
App.—Tyler Dec. 4, 2013, orig. proceeding) (mem. op., not designated for publication) (Article
42.03’s language does not authorize time credit in one case for confinement in another case);
Collins v. State, 318 S.W.3d 471, 473 (Tex. App.—Amarillo 2010, pet. ref’d) (under Article
42.03, “the credit at issue relates not just to any time the defendant spent incarcerated before
conviction”). If Appellant is correct that she is entitled to the extra jail time credit, then her six
month sentence is extended by over 100 days, and her punishment would exceed that
recommended by the prosecutor and agreed to by the defendant. Accordingly, the record is not
entirely clear as to whether the certification is correct that Appellant is not entitled to an appeal.
See Dears v. State, 154 S.W.3d 610 (Tex. Crim. App. 2005) (holding that court of appeals
should review clerk’s record to determine whether trial court’s certification is accurate). Even
so, we may require the trial court to certify whether there is a right to appeal, but we may not
1
Appellant filed a petition for writ of mandamus with respect to this issue, but this Court did not address
the merits of her complaint because Appellant failed to satisfy the ministerial act requirement for mandamus. In re
Perero, No. 12-21-00127-CR, 2021 WL 4203102, at *4 (Tex. App.—Tyler Sept. 15, 2021, orig. proceeding) (mem.
op., not designated for publication).
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dictate the contents of the certification. See Greenwell v. Court of Appeals for Thirteenth
Judicial Dist., 159 S.W.3d 645, 650 n.24 (Tex. Crim. App. 2005) (orig. proceeding).
Accordingly,
It is ORDERED that this case is remanded to the Honorable Kerry L. Russell to (1) issue
a new certification, or (2) if Appellant is not entitled to appeal, issue findings of fact and
conclusions of law explaining why Appellant is not entitled to an appeal. Such certification or
findings and conclusions must be filed with the district clerk on or before October 4, 2021.
It is FURTHER ORDERED that a supplemental clerk’s record including either a new
certification or the trial court’s findings and conclusions be certified to this Court on or before
October 11, 2021.
WITNESS the Honorable James T. Worthen, Chief Justice of the Court of Appeals, 12th
Court of Appeals District of Texas, at Tyler.
GIVEN UNDER MY HAND AND SEAL OF SAID COURT, at my office this the
22nd day of September 2021, A.D.
KATRINA MCCLENNY, CLERK
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