Ariel Cordoba v. the State of Texas ( 2023 )

Opinion issued August 31, 2023
In The
Court of Appeals
For The
First District of Texas
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NO. 01-23-00134-CR
NO. 01-23-00135-CR
NO. 01-23-00136-CR
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ARIEL CORDOBA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 339th District Court
Harris County, Texas
Trial Court Case Nos. 1711923, 1711123, 1711124
MEMORANDUM OPINION
Appellant Ariel Cordoba (“Cordoba”) seeks to appeal the judgment of the trial
court convicting her of the first-degree felony offense of aggravated sexual assault
and sentencing her to twenty years’ confinement.
We dismiss the appeal for want of jurisdiction.
Background
Cordoba pleaded guilty to the first-degree felony offense of aggravated sexual
assault without an agreed recommendation as to punishment. Cordoba signed a
“Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession”
(“Waiver of Rights”) stating she entered a guilty plea without an agreed punishment
recommendation and requested the trial court to set her punishment. After a pre-
sentencing hearing, the trial court entered a judgment convicting Cordoba of the
charged offense and sentencing her to a term of twenty years in the Texas
Department of Criminal Justice Correctional Institution Division. The judgment
states, “APPEAL WAIVED, NO PERMISSION GRANTED.” The trial court’s
“Certification of Defendant’s Right of Appeal” (“Certification”) similarly provides
that Cordoba’s trial court case was “a plea-bargain case, and [Cordoba] has NO right
of appeal.”
Cordoba subsequently filed a notice of appeal.
Discussion
A defendant in any criminal case has a right of appeal. TEX. CODE CRIM.
PROC. art 44.02; TEX. R. APP. P. 25.2(a)(2). Texas Rule of Appellate Procedure
25.2(a)(2) provides that in a criminal case, a trial court “shall enter a certification of
the defendant’s right of appeal each time it enters a judgment of guilt other
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appealable order.”1 Id. at 25.2(a)(2). When the defendant is the appellant in a
criminal case, “the record must include the trial court’s certification of the
defendant’s right of appeal.” TEX. R. APP. P. 25.2(d). If the certification showing
the defendant has the right of appeal has not been made part of the record, the appeal
must be dismissed. See TEX. R. APP. P. 25.2(d); Dears v. State, 154 S.W.3d 610,
613 (Tex. Crim. App. 2005).
The trial court’s Certification and Cordoba’s Waiver of Rights are both
included in the appellate record. The Certification provides that Cordoba “has NO
right of appeal.” And the Waiver of Rights provides that Cordoba waived her right
of appeal. As discussed below, the record supports the trial court’s Certification that
Cordoba waived her right to appeal. See Dears, 154 S.W.3d at 615.
A defendant in any criminal prosecution for any offense may waive any rights
secured her by law. TEX. CODE CRIM. PROC. art 1.14. A valid waiver of appeal—
one made voluntarily, knowingly, and intelligently—prevents a defendant from
appealing without the trial court’s consent. Carson v. State, 559 S.W.3d 489, 492–
93 (Tex. Crim. App. 2018). “[A] defendant may knowingly and intelligently waive
h[er] entire appeal as a part of a plea, even when sentencing is not agreed upon,
where consideration is given by the State for that waiver.” Id. at 492–93 (“State’s
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The Rule provides an exception for orders “appealable under Code of Criminal
Procedure Chapter 64.” TEX. R. APP. P. 25.2(a)(2).
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waiver of its right to a jury was sufficient consideration to render Appellant’s waiver
of his right to appeal knowing and intelligent.”); see also Ex parte Broadway, 301
S.W.3d 694, 697-98 (Tex. Crim. App. 2009) (holding that defendant’s waiver of his
right to jury trial in open plea case for trial court’s consideration of deferred-
adjudication community supervision with drug treatment constituted bargain.).
Under the Code of Criminal Procedure, a defendant may not waive her right
to a jury trial unilaterally. The court and the State must consent to the waiver. See
TEX. CODE CRIM. PROC. art. 1.13(a) (“The defendant in a criminal prosecution for
any offense other than a capital felony case in which the [S]tate notifies the court
and the defendant that it will seek the death penalty shall have the right, upon
entering a plea, to waive the right of trial by jury, conditioned, however, that, except
as provided by [a]rticle 27.19, the waiver must be made in person by the defendant
in writing in open court with the consent and approval of the court, and the attorney
representing the [S]tate.”). In her Waiver of Rights, Cordoba stated that in open
court and prior to entering her plea, she “waive[d] the right of trial by jury,” and that
“in exchange for the State waiving [its] right to a jury trial” she intended “to enter a
plea of guilty without an agreed recommendation of punishment . . . .” Cordoba
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further stated that “in exchange for the [S]tate giving up [its] right to trial, [she]
agree[d] to waive any right of appeal which [she] may have.”
Cordoba thus waived her right of appeal in exchange for consideration from
the State. See TEX. CODE CRIM. PROC. art. 1.13(a); Carson, 559 S.W.3d at 492–96;
Ex parte Broadway, 301 S.W.3d at 696–99. The trial court’s Certification that
Cordoba has “NO right of appeal” is supported by the record.
Because the trial court has not given Cordoba permission to appeal, Cordoba
has no right of appeal. Dears, 154 S.W.3d at 613. We dismiss the appeal for want
of jurisdiction. See TEX. R. APP. P. 43.2(f).
All pending motions are denied as moot.
PER CURIAM
Panel consists of Justices Goodman, Rivas-Molloy, and Guerra.
Do not publish. TEX. R. APP. P. 47.2(b).
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