Victor Vela v. the State of Texas

Opinion issued February 9, 2023
In The
Court of Appeals
For The
First District of Texas
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NO. 01-22-00732-CR
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VICTOR VELA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 461st District Court
Brazoria County, Texas
Trial Court Case No. 92719-CR
MEMORANDUM OPINION
A jury found appellant, Victor Vela, guilty of the felony offense of aggravated
sexual assault of a child.1 The trial court, pursuant to appellant’s post-verdict
1
See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iii), (2)(B), (e).
agreement with the State, assessed appellant’s punishment at confinement for twenty
years. Appellant timely filed a notice of appeal.
We dismiss the appeal for lack of jurisdiction.
Here, a Brazoria County grand jury returned a true bill of indictment, alleging
that on September 11, 2020, appellant “intentionally or knowingly cause[d] the
sexual organ of [the complainant], a child younger than fourteen . . . years of age
and not [appellant’s] spouse, to contact the mouth of [appellant].” See TEX. PENAL
CODE ANN. § 22.021(a)(1)(B)(iii), (2)(B). Appellant pleaded not guilty and proceeded
to a jury trial. After the jury found appellant guilty of the felony offense of
aggravated sexual assault of a child, but before the punishment phase of trial began,
appellant, on the record, notified the trial court that he had reached an agreement
with the State as to punishment.
The Court: It’s my understanding the State and the
defense and yourself have come to an
agreement. My understanding of the
agreement is the State is offering 20
years in the Texas Department of
Criminal Justice. Let me go back.
The range of punishment for this case
after finding you guilty is not less than
5 years, not more than 99 years or life
and a fine not to exceed $10,000. Did
you understand that full range of
punishment?
[Appellant]: Yes, sir.
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The Court: And as part of this plea agreement the
State is offering 20 years with jail
credit of 450 days, waive all appeals as
to guilt and innocence phase of the trial
and punishment phase of the trial.
Is that the State’s recommendation?
[State]: Yes, Your Honor. And . . . [appellant]
needs to also waive any pretrial or any
appellate matters, any appellate issues
as well. . . .
[Appellant’s counsel]: And, yes, Judge. . . . I don’t think
there were necessarily any pretrial
issues that we took up. But
[appellant’s] waiver of appeal would
be good for the entire trial. Pretrial,
trial, and punishment all included.
The Court: All right. And that’s your
understanding, [appellant’s counsel]?
[Appellant’s counsel]: Yes. And additionally it’s my
understanding there is no fine
imposed.
The Court: And, [appellant], is that your
understanding of the agreement?
[Appellant]: Yes, sir.
The trial court then sentenced appellant in accordance with his post-verdict
agreement with the State.
Appellant also signed a “Sex Crimes Plea Agreement” reflecting his
punishment agreement with the State, namely that his punishment would be assessed
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at twenty years’ confinement, appellant would receive 450 days “jail time credit,”
and appellant “waive[d] all appeals.” By signing the agreement, appellant affirmed
that he “underst[ood] the terms of the plea agreement,” he “accept[ed] the plea
agreement,” and he “request[ed] the [trial] court to accept it.” Appellant’s counsel
also signed the “Sex Crimes Plea Agreement,” affirming that he believed that
appellant understood the plea agreement and counsel joined appellant’s request that
the trial court accept the agreement.
The trial court’s judgment of conviction stated that an agreement had been
reached between the State and appellant as to punishment, and pursuant to
appellant’s post-verdict agreement with the State, the trial court assessed appellant’s
punishment at confinement for twenty years. And the trial court signed a
“Certification of Defendant’s Right of Appeal,” which is included in the record on
appeal, stating that appellant had waived his right to appeal. See TEX. R. APP. P.
25.2(a)(2), (d). Appellant also signed the certification. See id. The record supports
the trial court’s certification. See Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim.
App. 2005).
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
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without the trial court’s permission. See id.; Ex parte Broadway, 301 S.W.3d 694,
697–99 (Tex. Crim. App. 2009); see also Williams v. State, No. 01-19-00293-CR,
2019 WL 4677361, at *1 (Tex. App.—Houston [1st Dist.] Sept. 26, 2019, no pet.)
(mem. op., not designated for publication). When a defendant waives his right to
appeal in exchange for consideration from the State, a defendant’s waiver is made
knowingly, intelligently, and voluntarily, and he is prevented from appealing any
matters unless the trial court first grants permission. See Ex parte Broadway, 301
S.W.3d at 697–99; Bruner v. State, No. 01-18-00635-CR, 2018 WL 4131088, at *1
(Tex. App.—Houston [1st Dist.] Aug. 30, 2018, no pet.) (mem. op., not designated
for publication); see also Guillory v. State, No. 01-12-00451-CR, 2012 WL
3776999, at *1 (Tex. App.—Houston [1st Dist.] Aug. 30, 2012, no pet.) (mem. op.,
not designated for publication). An appeal must be dismissed if a certification
showing that a defendant has the right of appeal has not been made part of the record.
See TEX. R. APP. P. 25.2(d); Dears, 154 S.W.3d at 613.
Here, the record shows that appellant voluntarily agreed to waive his right to
appeal in exchange for a twenty-year sentence recommendation from the State. Cf.
Williams, 2019 WL 4677361, at *1; Guillory, 2012 WL 3776999, at *1. Appellant’s
waiver covered all matters, and the trial court did not give appellant permission to
appeal. See Bruner, 2018 WL 4131088, at *2; Guillory, 2012 WL 3776999, at *1.
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Because appellant has no right of appeal, we must dismiss his appeal. 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.”).
Accordingly, we dismiss the appeal for lack of jurisdiction. See TEX. R. APP.
P. 43.2(f). We dismiss all pending motions as moot.
PER CURIAM
Panel consists of Justices Landau, Countiss, and Guerra.
Do not publish. TEX. R. APP. P. 47.2(b).
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