Little John Faulkner v. State

Dismissed and Opinion filed June 25, 2013.
In The
Fourteenth Court of Appeals
NO. 14-12-00677-CR
LITTLE JOHN FAULKNER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 2
Harris County, Texas
Trial Court Cause No. 1813146
OPINION
Appellant Little John Faulkner appeals his conviction for indecent exposure,
asserting, among other things, that his plea agreement is void for lack of
consideration. We dismiss the appeal for lack of jurisdiction because appellant
waived his right to appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant was charged by information with the offense of indecent
exposure. Appellant pleaded “not guilty” to the charged offense. A jury found
appellant guilty as charged. The record reflects that appellant entered into an
agreement with the State as to punishment and waived his right to appeal. The trial
court accepted the agreement and sentenced appellant to 180 days’ confinement in
jail. Appellant now seeks to appeal the conviction. The State asserts this court is
without jurisdiction to consider the appeal.
ANALYSIS
In his first issue appellant argues that the agreement on punishment was void
for lack of consideration.1 He asserts that he received no benefit because the
punishment to which he agreed was the maximum punishment allowed under law.
Appellant argues that the agreement should be ordered withdrawn and the case
remanded for a new punishment hearing.
As a preliminary matter, we consider the State’s argument that this court
lacks jurisdiction over the appeal. The State points to the trial court’s certification
of the defendant’s right to appeal, which was filed in this court as part of the
clerk’s record. See Tex. R. App. P. 25.2(d). The trial court’s certification bears
appellant’s signature and indicates that he waived the right to appeal; appellant’s
initials are printed beside a box containing a check-mark beside the phrase, “the
defendant has waived the right of appeal.” We review the record to determine
whether the record supports the trial court’s certification. See Dears v. State, 154
S.W.3d 610, 615 (Tex. Crim. App. 2005) (providing that an appellate court may
review the record to determine whether an appellant has the right to appeal).
1
In his second issue, appellant asserts charge error in the guilt/innocence phase.
2
The record reflects the following exchange:
[Judge]: All right, Now, y’all in agreement? Is there an agreement on
punishment? All right. Is there an agreement on punishment?
[Prosecutor]: Yes, Your Honor.
[Appellant’s Trial Counsel]: Well, judge, we’ll agree. Yeah, we’ll
agree.
[Judge]: Okay. Now, first of all, are you waiving your right to
appeal?
[Appellant]: Yes, sir.
[Judge]: All right. Fill it out. I need that document.
[Appellant’s Trial Counsel]: I filled it out. He needs to initial it.
After a discussion off-record, the following colloquy occurred:
[Judge]: . . . And I have in hand the trial court certification,
defendant’s right to an appeal, and is this your signature, sir, right
here?
[Appellant]: Yes, sir.
[Judge]: And are you waiving your right to an appeal, is that correct?
[Appellant]: Yes, sir.
[Judge]: Sir?
[Appellant]: Yes, sir.
[Judge]: All right. And that’s your initials on there, is that correct?
[Appellant]: Yes, sir.
[Judge]: All right. Thank you so much. It’s hereby the order of the
court, jury having found you guilty, the court has received that verdict
and I hereby—it’s an agreement from both sides you’re basically—
apparently you got enough back time here, but the agreement is for
180 days in jail, which is the maximum you can get for this offense.
There’s no enhancement, is that correct, or is there? Is there an
enhancement paragraph
[Appellant’s Trial Counsel]: I don’t think so, Judge.
[Judge]: Well, double check it.
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[Prosecutor]: Yes. It’s a felony with a weapon.
[Appellant’s Trial Counsel]: Oh, yes, there is.
[Judge]: State abandons the enhancement paragraph. Enhancement
paragraph is abandoned, otherwise you[’re] going to have to prove it
up. You don’t have the fingerprint man, so disregard.
All right. Enhancement is abandoned and the jury found him guilty, I
find you guilty, assess your punishment as per the plea agreement as
per—not the plea agreement but as per the terms of what both sides
tactically agreed to 180 days in jail, credit for time served, whatever
that is.
A defendant in any criminal action has the right to appeal. Tex. Code Crim.
Proc. Ann. art. 44.02 (West 2006). But a defendant may waive any rights secured
him by law. Tex. Code Crim. Proc. Ann. art. 1.14(a) (West 2005). A valid waiver
of the right to appeal, whether negotiated or non-negotiated, will prevent a
defendant from appealing without the consent of the trial court. See Monreal v.
State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003). The record reflects that, in
exchange for appellant’s waiver of the right to appeal, the State agreed to
punishment of 180 days’ confinement in jail and no fine. Contrary to appellant’s
argument, this agreed punishment was not the maximum allowed under law; the
maximum punishment was a $2,000 fine and 180 days’ confinement in jail. See
Tex. Penal Code Ann. §§12.22, 12.43(b) (West 2013). The trial court sentenced
appellant in accordance with the agreement on punishment; therefore, the State
gave consideration for the waiver of appeal, and appellant received a benefit. See
Blanco v. State, 18 S.W.3d 218, 219–20 (Tex. Crim. App. 2000); Moreno v. State,
327 S.W.3d 267, 268–69 (Tex. App.—San Antonio 2010, no pet.); Bushnell v.
State, 975 S.W.2d 641, 641–44 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d).
We conclude that appellant voluntarily, knowingly, and intelligently waived his
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right to appeal and received consideration from the State.2 See Blanco, 18 S.W.3d
at 219–20 (affirming dismissal of appeal based upon appellant’s waiver of the right
to appeal after conviction in exchange for State’s agreement to recommend that the
trial court assess punishment at sixteen years’ confinement); Moreno, 327 S.W.3d
at 268–69 (enforcing post-sentencing waiver of appeal made in open court);
Bushnell, 975 S.W.2d at 641–44 (Tex. App.—Houston [14th Dist.] 1998, pet.
ref’d) (dismissing for lack of appellate jurisdiction based upon waiver of the right
to appeal made in exchange for State’s agreement as to punishment, as expressed
in colloquy in open court).
We conclude that the trial court’s certification that appellant waived his right
to appeal is supported by the record. See Tex. R. App. P. 25.2(a). Because
appellant has no right to appeal, the proper course is to dismiss the appeal without
reaching the merits.3 See Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App.
2006); Blanco, 18 S.W.3d at 219–20; Bushnell, 975 S.W.2d at 641–44.
Accordingly, we dismiss the appeal for lack of jurisdiction.
/s/ Kem Thompson Frost
Justice
Panel consists of Justices Frost, Brown, and Busby.
Publish — TEX. R. APP. P. 47.2(b).
2
On appeal, appellant does not assert that his waiver of the right to appeal was not made
voluntarily, knowingly, and intelligently.
3
The issues raised under appellant’s first issue relate both to the merits and to the validity of
appellant’s waiver of the right to appeal. We do not rule on the merits of appellant’s issues, but
we address appellant’s arguments under the first issue to the extent they relate to waiver of the
right to appeal.
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