Eddie Roy Olvera v. the State of Texas

Opinion issued July 20, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00726-CR
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EDDIE ROY OLVERA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 208th District Court
Harris County, Texas
Trial Court Case No. 1596786
MEMORANDUM OPINION
Appellant, Eddie Roy Olvera, was charged with the felony offense of murder.1
After appellant, pursuant to a plea agreement with the State, pleaded guilty to the
1
See TEX. PENAL CODE ANN. § 19.02(b), (c) (first-degree felony offense).
lesser offense of aggravated assault2 and true to the allegation in an enhancement
paragraph that he had previously been convicted of a felony offense, the trial court,
found appellant guilty of the felony offense of aggravated assault and assessed his
punishment at confinement for twenty-four years. Appellant filed a notice of appeal.
We reinstate and dismiss the appeal for lack of jurisdiction.
Background
A Harris County Grand Jury issued a true bill of indictment, alleging that
appellant, on or about July 3, 2018, “unlawfully, intentionally and knowingly
cause[d] the death of [the complainant] . . . by striking [the] [c]omplainant with a
[m]otor [v]ehicle.” The indictment further alleged that appellant “unlawfully
intend[ed] to cause serious bodily injury to [the complainant] . . . and did cause the
death of [the] [c]omplainant by intentionally and knowingly committing an act
clearly dangerous to human life, namely striking [the] [c]omplainant with a [m]otor
[v]ehicle.” Finally, the indictment alleged that “at the time the [appellant]
committed the felony offense of murder . . . he used and exhibited a deadly weapon,
namely, a motor vehicle, during the commission of said offense and during the
immediate flight from said offense.”3
2
See id. § 22.02(a) (second-degree felony offense).
3
See id. § 19.02(b).
2
Appellant, pursuant to a plea agreement from with the State, pleaded guilty to
the lesser offense of aggravated assault. In connection with his plea agreement, on
June 29, 2023, appellant signed and filed a “Waiver of Constitutional Rights,
Agreement to Stipulate, and Judicial Confession,” in which he pleaded guilty to the
second-degree felony offense of aggravated assault and admitted that he committed
the acts alleged in the indictment. Appellant’s trial counsel also signed the “Waiver
of Constitutional Rights, Agreement to Stipulate, and Judicial Confession,”
affirming that he believed that appellant had entered the guilty plea knowingly,
voluntarily, and after a full discussion of the consequences of the plea. Trial counsel
also affirmed that he believed appellant was competent to stand trial.
The “Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial
Confession” also included the following waiver of appellant’s right to appeal:
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 understand that I have not reached an agreement with the prosecutor
as to punishment. However, in exchange for the State waiving [its]
right to a jury trial, I intend to enter a plea of guilty without an agreed
recommendation of punishment from the prosecutor and request that
my punishment should be set by the [trial court] after a pre-sentence
investigation report and hearing. . . . I waive any further time to
prepare for trial to which I or my attorney may be entitled. Further, in
exchange for the [S]tate giving up [its] right to trial, I agree to waive
any right of appeal which I may have.
3
(Emphasis omitted.)
Also, on June 29, 2023, appellant signed written admonishments,
acknowledging that he had been indicted the for the felony offense of murder, but
that, pursuant to the plea agreement, the State had moved to reduce the charge to
aggravated assault. Appellant further acknowledged that he understood the
punishment ranges for that offense. Appellant also signed a “Statement and Waivers
of Defendant,” affirming that he was mentally competent, understood the nature of
the charges against him, the trial court’s admonishments, and the consequences of
his plea, and freely and voluntarily pleaded guilty.
Moreover, appellant represented that he had consulted with his trial counsel
about his plea; he “waive[d] and g[a]ve up any time provided [him] by law to prepare
for trial”; he was “totally satisfied with the representation provided by [his] counsel
and [he had] received effective and competent representation”; he “waive[d] and
g[a]ve up [his] right to a jury in th[e] case and [his] right to require the appearance,
confrontation and cross[-]examination of the witnesses”; and he “confess[ed] and
admit[ted] that [he] committed each and every allegation contained” in the
indictment. Appellant requested that the trial court accept his guilty plea.
Further, on June 29, 2023, appellant signed a document titled, “Advice of
Defendant’s Right of Appeal,” explaining that because he “pled guilty,” he could
not “appeal [his] conviction unless the [trial court gave him] permission.” Appellant
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acknowledged that he “waived or gave up [the] right to appeal, [and he could not]
appeal [his] conviction.”
Following appellant’s plea, the trial court found sufficient evidence of
appellant’s guilt and that he had entered his guilty plea freely, knowingly, and
voluntarily. The trial court admonished appellant of his legal rights and accepted
his plea of guilty to the lesser offense of aggravated assault. On June 29, 2022, the
trial court signed a certification of appellant’s right of appeal, stating that this was
“a plea-bargain case, and [appellant] ha[d] NO right of appeal.” The certification
was also signed by appellant and his counsel. See TEX. R. APP. P. 25.2(a)(2), (d).
On September 20, 2022, the trial court entered its judgment of conviction,
assessing appellant’s punishment at confinement for twenty-four years. The trial
court’s judgment acknowledged that, pursuant to a plea agreement, the State had
agreed to reduce the charge against appellant in exchange for his plea of guilty to
the lesser offense of aggravated assault.
On October 5, 2022, the trial court entered a second certification of appellant’s
right of appeal, stating that this was “not a plea-bargain case, and [appellant] ha[d]
the right of appeal.” See TEX. R. APP. P. 25.2(a)(2), (d). On October 7, 2022,
appellant filed a notice of appeal.
On March 20, 2023, appellant’s court-appointed appellate counsel filed a
“Motion to Abate for Determination of Appellant’s Right to Appeal.” In the motion,
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appellant’s court-appointed counsel noted that the trial court’s June 29, 2022
certification conflicted with its October 5, 2022 certification. Counsel further stated
that “it [was] unclear whether the trial court gave [a]ppellant . . . the right to appeal.”
Counsel therefore requested that the Court abate the appeal to allow the trial court
to “determine the status of [a]ppellant’s right to appeal.”
The Texas Rules of Appellate Procedure require this Court to dismiss an
appeal unless the record contains a written certification showing that the appellant
has the right of appeal. See TEX. R. APP. P. 25.2(d). The rules also permit
amendment of a defective certification and prohibit the Court from dismissing an
appeal based on the lack of a valid certification when we determine that an appellant
has a right of appeal. See TEX. R. APP. P. 25.2(f), 34.5(c)(2), 37.1, 44.4; see also
Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005). Where, as here, there
are multiple, conflicting certifications in the appellate record, the inconsistency in
certifications must be resolved before the appeal can proceed. See Lopez v. State,
595 S.W.3d 897, 899 n.1 (Tex. App.—Houston [14th Dist.] 2020, pet. ref’d) (noting
abatement necessary where there are conflicting certifications of appellant’s right of
appeal).
Accordingly, on April 6, 2023, the Court abated the appeal, remanded the case
to the trial court, and directed the trial court to conduct a hearing and make a finding
to clarify whether this was a plea-bargain case, and whether appellant had the right
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of appeal, or if the trial court had granted appellant permission to appeal. The trial
court was further directed, if necessary, to execute an amended certification of
appellant’s right of appeal.
On June 6, 2023, a supplemental clerk’s record was filed with this Court. The
supplemental clerk’s record included an amended certification of appellant’s right
of appeal, entered on May 25, 2023, stating that this was “a plea-bargain case, and
[appellant] ha[d] NO right of appeal.” The amended certification was signed by the
trial court, appellant, and appellant’s counsel. The appellate record supports the trial
court’s amended certification. See Dears, 154 S.W.3d at 615.
Jurisdiction
“Courts always have jurisdiction to determine their own jurisdiction.” Harrell
v. State, 286 S.W.3d 315, 317 (Tex. 2009) (internal quotations omitted). Criminal
defendants have a statutory right to appeal their conviction. See TEX. CODE CRIM.
PROC. ANN. art. 44.02; Carson v. State, 559 S.W.3d 489, 492 (Tex. Crim. App.
2018). However, when a trial court enters a judgment of guilt, it must certify
whether the defendant has a right of appeal. See TEX. R. APP. P. 25.2(a)(2). Texas
Rule of Appellate Procedure 25.2(a) states that:
In a plea bargain case--that is, a case in which a defendant’s plea was
guilty . . . and the punishment did not exceed the punishment
recommended by the prosecutor and agreed to by the defendant--a
defendant may appeal only: (A) those matters that were raised by
written motion filed and ruled on before trial, (B) after getting the trial
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court’s permission to appeal, or (C) where the specific appeal is
expressly authorized by statute.
TEX. R. APP. P. 25.2(a)(2).
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 is clear that appellant voluntarily entered
a plea of guilty to the lesser offense of aggravated assault without an agreed
punishment recommendation from the State. Accordingly, appellant can only appeal
those matters raised by written motion filed and ruled on before trial, with the
permission of the trial court, or where he was authorized to appeal by statute. See
TEX. R. APP. P. 25.2(a)(2). The record does not reflect that appellant’s appeal meets
any of these requirements. Thus, appellant may not appeal his conviction.
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 who plea-bargained 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 Fairley v. State, Nos. 01-20-00824-CR, 01-20-00825-CR, 2022 WL
210457, at *1–3 (Tex. App.—Houston [1st Dist.] Jan. 25, 2022, no pet.) (mem. op.,
not designated for publication).
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Accordingly, we reinstate the appeal to the Court’s active docket and dismiss
the appeal for lack of jurisdiction. See TEX. R. APP. P. 43.2(f). We dismiss any
pending motions as moot.
PER CURIAM
Panel consists of Chief Justice Adams and Justices Guerra and Farris.
Do not publish. TEX. R. APP. P. 47.2(b).
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