Mark Kevin Alexander v. the State of Texas ( 2024 )

Opinion issued June 4, 2024
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-24-00021-CR
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MARK KEVIN ALEXANDER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 486th District Court
Harris County, Texas
Trial Court Case No. 1804916
MEMORANDUM OPINION
Appellant, Mark Kevin Alexander, without an agreed punishment
recommendation from the State, pleaded guilty to the felony offense of aggravated
assault.1 The trial court found appellant guilty and assessed appellant’s punishment
at confinement for eight years. Appellant filed a notice of appeal.
We reinstate and dismiss the appeal for lack of jurisdiction.
The Texas Rules of Appellate Procedure clearly set out the right to appeal for
criminal defendants. See Lewis v. State, No. 01-22-00303-CR, 2022 WL
141565900, at *1 (Tex. App.—Houston [1st Dist.] Oct. 25, 2022, no pet.) (mem.
op., not designated for publication); Lagunas v. State, No. 01-20-00279-CR, 2020
WL 5823291, at *1 (Tex. App.—Houston [1st Dist.] Oct. 1, 2020, no pet.) (mem.
op., not designated for publication). Texas Rule of Appellate Procedure 25.2 states
that in a case where a defendant has voluntarily pleaded guilty, the defendant may
only appeal those matters that were raised by written motion filed and ruled on
before trial or after getting the trial court’s permission. See TEX. R. APP. P.
25.2(a)(2); see also TEX. CODE CRIM. PROC. ANN. art. 44.02. The trial court must
sign a certification of a defendant’s right of appeal each time it enters a judgment of
guilt or other appealable order. TEX. R. APP. P. 25.2(a)(2). An appeal must be
dismissed if a certification showing that the defendant has a right of appeal has not
been made part of the record. TEX. R. APP. P. 25.2(d); Dears v. State, 154 S.W.3d
610, 613 (Tex. Crim. App. 2005).
1
See TEX. PENAL CODE ANN. § 22.01(a), 22.02(a), (b).
2
Here, the trial court’s certification is included in the record on appeal. See
TEX. R. APP. P. 25.2(d). It states that appellant “has waived the right of appeal.” The
trial court’s judgment also states: “APPEAL WAIVED, NO PERMISSION TO
APPEAL GRANTED.” The record supports the trial court’s certification.2
Although a defendant has a statutory right to appeal his conviction, a
defendant may waive his right to appeal in all but capital cases. Carson v. State, 559
S.W.3d 489, 492–93 (Tex. Crim. App. 2018). A valid waiver of appeal—one made
voluntarily, knowingly, and intelligently—prevents a defendant from appealing
without the trial court’s consent. See id.; Ex parte Broadway, 301 S.W.3d 694, 697–
99 (Tex. Crim. App. 2009); see also Flores v. State, Nos. 01-20-00243-CR to
01-20-00246-CR, 2020 WL 2988564, at *1 (Tex. App.—Houston [1st Dist.] June 4,
2020, pet. ref’d) (mem. op., not designated for publication). “[A] defendant may
2
We note that on November 1, 2023, the trial court signed a certification of
appellant’s right to appeal, stating that appellant “ha[d] waived the right to appeal.”
But on November 27, 2023, the trial court signed a second certification stating that
this was “not a plea-bargain case, and [appellant] ha[d] the right of appeal.” Because
the trial court’s November 27, 2023 certification conflicted with the appellate record
and the trial court’s November 1, 2023 certification, appellant’s court-appointed
appellate counsel filed a motion to abate, requesting that the Court abate this appeal
for the trial court “to determine the status of [a]ppellant’s right to appeal.” The
Court granted the motion to abate, and the trial court held a hearing to determine
whether appellant had the right of appeal or if the trial court had granted appellant
permission to appeal. See, e.g., Olvera v. State, No. 01-22-00726-CR, 2023 WL
4629145, at *2–3 (Tex. App.—Houston [1st Dist.] July 20, 2023, no pet.) (mem.
op., not designated for publication). Following the hearing, the trial court signed a
new certification, stating that appellant had “waived the right of appeal.” The new
certification was signed by the trial court and appellant’s court-appointed appellate
counsel. It is supported by the appellate record.
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knowingly and intelligently waive his appeal as part of a plea when consideration is
given by the State, even when sentencing is not agreed upon.” Carson, 559 S.W.3d
at 494; see Jones v. State, 488 S.W.3d 801, 804–08 (Tex. Crim. App. 2016)
(explaining presentence waivers of right of appeal have been upheld when record
showed defendant received consideration for waiver); see also TEX. CODE CRIM.
PROC. ANN. art. 1.14(a) (“The defendant in a criminal prosecution for any offense
may waive any rights secured him by law . . . .”); Flores, 2020 WL 2988564, at *1.
Here, as part of his guilty plea, appellant signed a “Waiver of Constitutional
Rights, Agreement to Stipulate, and Judicial Confession,” which stated:
The State agrees to waive its right to a jury trial and mandatory prison
sentence on finding of guilt, in exchange for [appellant’s] agreement to
waive his right to appeal. The plea is without an agreed
recommendation to the trial court with the full range of sentence
available to the [c]ourt.
(Emphasis omitted.) Further, in the “Waiver of Constitutional Rights, Agreement to
Stipulate, and Judicial Confession,” appellant agreed as follows:
I understand the above allegations and I confess that they are true and
that the acts above were committed on July 29, 2022.
In open court I consent to the oral and written stipulation of evidence
in this case and to the introduction of affidavits, written statements, of
witnesses, and other documentary evidence. I am satisfied that the
attorney representing me today in court has properly represented me
and I have fully discussed this case with him. I waive any further time
to prepare for trial to which I or my attorney may be entitled.
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Open Guilty Plea:
I intend to enter a plea of guilty without an agreed recommendation of
punishment from the [State] and request that my punishment be set by
the judge. I understand that I have not reached an agreement with the
[State] as to punishment, and the [State] reserves the right to argue for
any sentence within the available range of punishment at my sentencing
hearing.[3]
In exchange for appellant’s waiver of his right to appeal, the State agreed to
waive its right to a jury trial or, more precisely, the State consented to appellant’s
waiver of his right to jury trial. See TEX. CODE CRIM. PROC. ANN. 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 [Texas Code of Criminal
Procedure] [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.” (emphasis added)); see also Lewis, 2022 WL 14165900,
at *2; Harrison v. State, No. 01-20-00093-CR, 2020 WL 7776082, at *2 (Tex.
App.—Houston [1st Dist.] Dec. 31, 2020, no pet.) (mem. op., not designated for
publication); Flores, 2020 WL 2988564, at *2. By agreeing to waive its right to a
3
Appellant also signed a document titled, “Advice of Defendant’s Right to Appeal,”
which advised appellant that if he “waived or gave up [his] right to appeal, [he]
c[ould not] appeal [his] conviction.” (Emphasis omitted.) In signing that document,
appellant affirmed that he had read and understood the document.
5
jury trial, the State gave consideration for appellant’s waiver of his right to appeal.
See Carson, 559 S.W.3d at 492–96; Ex parte Broadway, 301 S.W.3d at 695–99; see
also Lagunas, 2020 WL 5823291, at *1 (defendant voluntarily waived his statutorily
created right of appeal in exchange for State waiving its right to jury trial); Flores,
2020 WL 2988564, at *2.
Although appellant attempts to appeal from the trial court’s judgment of
conviction, the record is clear that appellant voluntarily waived his statutorily
created right of appeal in exchange for the State waiving its right to a jury trial. See
Lewis, 2022 WL 14165900, at *3. If a defendant validly waives his right to appeal
but nonetheless appeals, we must dismiss his appeal for lack of jurisdiction. See
Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006) (“A court of appeals,
while having jurisdiction to ascertain whether an appellant . . . is permitted to appeal
by [Texas Rule of Appellate Procedure] 25.2(a)(2), must dismiss a prohibited appeal
without further action, regardless of the basis for the appeal.”); see also Olvera v.
State, No. 01-22-00726-CR, 2023 WL 4629145, at *3 (Tex. App.—Houston [1st
Dist.] July 20, 2023, no pet.) (mem. op., not designated for publication); Lewis, 2022
WL 14165900, at *3.
Accordingly, we reinstate the appeal on the Court’s active docket and dismiss
the appeal for lack of jurisdiction. See TEX. R. APP. P. 43.2(f). We dismiss all
pending motions as moot.
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PER CURIAM
Panel consists of Justices Landau, Countiss, and Guerra.
Do not publish. TEX. R. APP. P. 47.2(b).
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