Lee Vaughn Jr. v. the State of Texas

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00261-CR
No. 02-22-00262-CR
___________________________
LEE VAUGHN JR., Appellant
V.
THE STATE OF TEXAS
On Appeal from the 462nd District Court
Denton County, Texas
Trial Court Nos. F22-524-462, F22-525-462
Before Sudderth, C.J.; Kerr and Walker, JJ.
Memorandum Opinion on Rehearing by Justice Walker
MEMORANDUM OPINION ON REHEARING1
Appellant Lee Vaughn, Jr. was convicted by a jury on charges of possession of
a controlled substance and possession of a controlled substance with intent to deliver
(the Jury Convictions). The jury sentenced him to 2 years’ and 16 years’ confinement
respectively. After the pronouncement of Vaughn’s sentence for the Jury
Convictions, a plea hearing was held at which Vaughn pleaded guilty to two other
outstanding charges, one for felony assault and one for possession of marijuana (the
Agreed Convictions). Vaughn seeks to appeal only the Jury Convictions, but the State
has filed a motion to dismiss, arguing that Vaughn waived his right to appeal those
convictions. We agree with the State and will dismiss Vaughn’s appeals.
In exchange for Vaughn’s guilty plea on the felony assault charge, the State
agreed to reduce the charge to misdemeanor assault and to recommend his
punishment to be one year in jail. On the possession of marijuana charge, Vaughn
agreed to plead guilty for a recommended sentence of 12 months in state jail. The
trial court accepted these plea agreements.
At the plea hearing for the Agreed Convictions, the following exchange
occurred:
1
We issued our original memorandum opinion on March 23, 2023. Vaughn
then filed a motion for rehearing. We deny Vaughn’s motion for rehearing as moot,
withdraw our prior memorandum opinion, and substitute this memorandum opinion
on rehearing in its place.
2
Trial Court: My understanding also is that as part - - once the jury
returned this that your attorney, with your agreement, and the State of
Texas have worked out where you are gonna be disposing of the other
two cases by plea and that - - and in addition to that, you will be waiving
appeal in the two cases that went to jury trial. Is that your
understanding?
Vaughn: Yes, ma’am.
Trial Court: So you know that you’re not going to get another
lawyer at this point since you’ve waived appeal?
Vaughn: Yes ma’am.
Both of the trial court certifications for the Jury Convictions were originally
marked as showing that Vaughn had a right to appeal. However, they were amended
to reflect that Vaughn had in fact waived this right, and Vaughn acknowledged the
amendments with his initials:
The certifications were also signed by the trial court, Vaughn, and Vaughn’s trial
attorney.
3
Five days after the plea hearing, Vaughn completed an application and affidavit
of indigency which requested the trial court to appoint him counsel. The trial court
then entered its “FINDING REGARDING INDIGENCE AND ORDER
APPOINTING COUNSEL * * FOR APPEAL * *” (Indigence Order). The caption
of the Indigence Order contains all four cause numbers representing the Jury
Convictions and Agreed Convictions. The Indigence Order found “that [Vaughn] is
indigent, or justice otherwise requires appointment of counsel” and appointed
Vaughn’s appellate counsel to represent him. At the bottom of the Indigence Order
is a handwritten note that states: “Please note that Vaughn waived appeal on all cases
as part of plea bargain on remaining cases.” Vaughn did not file a motion for new
trial and did not raise the issue of involuntary waiver in his notice of appeal or in his
appellate brief.2
In its motion to dismiss, the State argues that the record shows that Vaughn
knowingly, intelligently, and voluntarily waived his right to appeal the Jury
Convictions. In response, Vaughn generally denied all of the allegations in the State’s
motion and filed an affidavit in which he attested that:
• “I was represented at trial by John Holland.”
2
Vaughn filed his appellant’s brief on January 11, 2023; the sole issue raised in
his brief concerns jury charge error.
4
• “At the conclusion of my trial, I met with my attorney, Mr. Holland. Mr.
Holland advised me of my right to appeal the verdicts and sentences in [the
Jury Conviction cases]. I advised Mr. Holland that I wished to appeal.”
• “I recall signing a document indicating I wished to appeal. I initialed next to
the option indicating I had the right to appeal. Mr. Holland signed this
document as well.”
• “Mr. Holland advised me that the State had offered to plead the [Agreed
Conviction] cases if I agreed to waive trial and waive appeal on those cases. I
agreed. I signed paperwork admitting guilt, pleading guilty, and waiving trial
and appeal in those cases.”
• “At no time did I sign paperwork waiving appeal in [the Jury Conviction cases].
At no time did I voluntarily agree to waive appeal in those cases.”
• “I have reviewed the State’s motion to dismiss this appeal. To the extent the
waiver relied upon by the State was made, it was made unintentionally and
involuntarily.”
• “I have reviewed the trial court’s certification of appeal in these cases. I
acknowledge my signature and initials on that document. I acknowledge that
the certification now appears to state I waived appeal. However, the version of
the document I signed indicated I had the right to appeal, and I intended my
signature to mean that I wished to appeal those cases.”
• “I have reviewed the transcript of my plea hearing. I acknowledge the trial
court’s admonition that I would be ‘waiving appeal in the two cases that went
to jury trial.’ I acknowledge my affirmative answer, however at the time of that
colloquy, I must have been confused about which cases the trial court was
referencing.”
• “I agreed to waive appeal in the two cases I pled guilty to. I did not intend to
waive appeal in [the Jury Conviction cases], and I would not have agreed to any
plea agreements that included such a waiver.
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Thus, Vaughn’s argument in opposition to the State’s motion is that he
misunderstood the situation when he orally waived appeal of the Jury Convictions and
when he initialed the trial court certifications indicating the same.
A defendant in a criminal action has a right to appeal. Tex. Code Crim. Proc.
Ann. art. 44.02. But a defendant in a non-capital case may waive any rights secured to
him by law, including his right to appeal. Tex. Code Crim. Proc. Ann. art. 1.14(a); Ex
parte Delaney, 207 S.W.3d 794, 796 (Tex. Crim. App. 2006). A valid waiver of appeal
prevents a defendant from appealing without the trial court’s consent. Delaney,
207 S.W.3d at 796. “A valid waiver of the right to appeal is one that was made
voluntarily, knowingly, and intelligently.” Id. at 796–97. When a defendant waives his
right to appeal as part of an agreement on sentencing and the trial court follows the
terms of that agreement, the waiver is made knowingly, intelligently, and voluntarily.
See id. at 798–99; Blanco v. State, 18 S.W.3d 218, 219–20 (Tex. Crim. App. 2000). Such
a waiver can be made orally or in writing. Moreno v. State, 327 S.W.3d 267, 268 (Tex.
App.—San Antonio 2010, no pet.). An appeal must be dismissed if the trial court
certification, as supported by the record, does not show the defendant has a right of
appeal. Tex. R. App. P. 25.2(d); see Dears v. State, 154 S.W.3d 610, 614–15 (Tex. Crim.
App. 2005).
In light of the record before us, we must dismiss Vaughn’s appeals. The record
establishes that he made a knowing, intelligent, and voluntary waiver of his right to
appeal the Jury Convictions at the plea hearing as part of his plea bargains on the
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Agreed Convictions. Vaughn’s attorney was present when Vaughn made this oral
waiver, and no objection or other protest was raised against it. The trial court
accepted and sentenced Vaughn in keeping with the plea bargains. Vaughn’s waiver
was also reduced to writing in both the Indigence Order and the trial court
certifications—which Vaughn signed and initialed indicating that he approved the
amendments from “defendant has the right of appeal” to “defendant has waived the
right of appeal.”
We also note that at no point prior to responding to the State’s motion to
dismiss did Vaughn ever highlight, allege, or seek to develop any particular facts to
support his contention that his waiver was involuntary. See Stanley v. State, 111 S.W.3d
773, 775 (Tex. App.—Fort Worth 2003, no pet.) (op. on reh’g) (dismissing appeal
because there was no evidence in the record to support appellant’s allegations of
involuntary waiver and because appellant did not file a motion for new trial in an
attempt to establish such evidence); Smith v. State, 858 S.W.2d 609, 611–12 (Tex.
App.—Amarillo 1993, pet ref’d) (holding that appellant was not entitled to evidentiary
hearing to develop evidence of involuntary waiver of right to appeal when he did not
first raise the issue with the trial court or by a motion for new trial); see also Ex parte
Tabor, 565 S.W.2d 945, 946 (Tex. Crim. App. 1978) (op. on reh’g) (declining to
consider issue of waiver of right to appeal because “[t]here were no allegations or
proof at the habeas corpus proceedings that the waiver of the right of appeal was
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coerced or involuntary, and there is nothing in the record suggesting coercion or
involuntariness”).
For the reasons set forth above, the record does not support Vaughn’s
contention of involuntary waivers of appeal. His attestations that he misunderstood
the proceedings are not enough to overcome the clear waivers he made to the court—
both orally and in writing—in the presence of his attorney. See Byland v. State, No. 08-
06-00309-CR, 2006 WL 3683843, at *1–2 (Tex. App.—El Paso Dec. 14, 2006, no
pet.) (mem. op., not designated for publication); Warren v. State, No. 09-96-098 CR,
1998 WL 44935, at *1–2 (Tex. App.—Beaumont Feb. 4, 1998, no pet.) (not
designated for publication); Smith, 858 S.W.2d at 611–12.
Accordingly, we must dismiss Vaughn’s appeals.
/s/ Brian Walker
Brian Walker
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: April 20, 2023
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