Abbott v. State

MIRNA SALAS ABBOTT, Appellant v. THE STATE OF TEXAS, Appellee

NO. 14-18-00685-CR

State of Texas in the Fourteenth Court of Appeals

July 30, 2020

On Appeal from the 207th District Court Comal County, Texas

Trial Court Cause No. CR2017-585(1)

ORDER ON CONTINUING ABATEMENT

Appellant Mirna Salas Abbott was convicted of the felony offense of possession of a controlled substance (more than four grams but less than 200 grams). In challenging the trial court's judgment as to her guilt, appellant raises due-process-of-law and ineffective-assistance-of-counsel issues related to events that took place before she entered a plea of guilty to the charged offense. The State has argued on appeal that appellant has waived her right to appeal as to these issues.

In its certification under Texas Rule of Appellate Procedure 25.2(a)(2), the trial court certified that this case "is not a plea-bargain case, and the defendant has the right to appeal except as to guilt/innocence." Thus, the trial court certified that appellant has no right to appeal as to guilt/innocence. If this certification is accurate, then appellate would have no right to appeal as to all the complaints she has raised in this court. As long as this certification stands as the current Rule 25.2(a)(2) certification in our appellate record, we cannot proceed to address appellant's appellate complaints. See Tex. R. App. P. 25.2(d) (stating that "[t]he appeal must be dismissed if a certification that shows the defendant has the right of appeal has not been made part of the record under these rules"); Jones v. State, 488 S.W.3d 801, 804 (Tex. Crim. App. 2016). This court has an obligation to review the record and determine whether the trial court's Rule 25.2(a)(2) certification is defective. See Jones, 488 S.W.3d at 805. Even though a certification may be correct in form, if the certification is contrary to the appellate record, the certification is defective. See Jones, 488 S.W.3d at 804; Dears v. State, 154 S.W.3d 610, 614 (Tex. Crim. App. 2005). Thus, we must review the appellate record and determine whether the trial court's Rule 25.2(a)(2) certification is contrary to the record and thus defective. See Jones, 488 S.W.3d at 805.

A review of the record reveals that appellant signed a document entitled "Admonishments, Voluntary Statements, Waivers, Stipulations, Judicial Confession & Plea Bargain" (the "Plea Papers"). Though the title of the Plea Papers includes the term "plea bargain," and though this term is used several times in the document, the text makes clear that the document is based on a form that may be used for plea bargain and also may be used for "guilty" pleas without any plea bargain. The Plea Papers provide that "[i]f a plea bargain does exist, the court will inform you in open court before making a finding on your plea whether it will follow the plea bargain."In the part of the Plea Papers in which appellant states she waived her right to appeal as to guilt or innocence (the "Waiver of Appeal"), appellant does not mention any consideration given by the State:

I understand my right to appeal but, having entered into a plea agreement with the State and as part of that agreement before sentencing, I waive my right to appeal from the judgment and sentence as to guilt or innocence.

Appellant agreed to plead "guilty" to the charged offense and to plead "true" to the enhancement paragraph. In the part of the Plea Papers in which the State could have given consideration by recommending a sentence or agreeing to prosecute appellant only on a lesser-included offense, the State did not check any of the first eleven items available in the form; instead, the State checked "Other" and inserted the following text in the blank lines:

This is an open plea of guilty and true to the enhancement paragraph. [Appellant] shall not ask for and shall not receive a deferred adjudication. Therefore, [appellant] shall be sentenced to a term not less than 15 years and not more than 99 years or life and a fine not to exceed $10,000.

The inserted language contains no reference to any consideration given by the State. Below this language, the Plea Papers state that "[t]he above terms constitute our agreement, and there are no agreements not set forth above." (the "End-of-Agreement Sentence"). Significantly, the wording on which the State relies as consideration for the Waiver of Appeal falls below the End-of-Agreement Sentence and above the signature line for the assistant district attorney:

I hereby join, consent to and approve of: (1) the stipulations of evidence pursuant to Art. 1.15, C.C.P.; and (2) the waiver of jury trial pursuant to Art. 1.13, C.C.P., conditioned on the Court accepting this Plea Agreement and sentencing the Defendant in accordance with this Plea Agreement.

Under the unambiguous language of the Plea Papers, the words on which the State relies as the bargained-for consideration was not part of the agreement between appellant and the State because these words fell below the End-of-Agreement Sentence. In addition, the language on which the State relies does not say that the State agrees that it will join, give consent to, or approve of the waiver of jury trial or that the State is doing so in exchange for appellant's Waiver of Appeal. Instead, by this language the State consented to and approved the waiver of jury trial in the manner required by article 1.13 of the Texas Code of Criminal Procedure. See Tex. Crim. App. Pro. Ann. art. 1.13 (stating that the attorney representing the state must consent to and approve of a defendant's waiver of the right to a jury trial and that this consent and approval must be "in writing, signed by [the attorney for the State], and filed in the papers of the cause before the defendant enters the defendant's plea"). Though the State conditioned its consent to the jury-trial waiver on the trial court's acceptance of "this Plea Agreement and sentencing the Defendant in accordance with this Plea Agreement," this conditional consent, which is not part of the agreement, does not show that appellant received any bargained-for consideration in exchange for her Waiver of Appeal.

At the hearing in which appellant pleaded "guilty," no person mentioned any consideration given by the State in exchange for appellant's Waiver of Appeal. Instead, after reciting that the case involved an open plea, the trial court confirmed that no one had promised appellant anything:

[trial court]: Ms. Abbott, in your case — okay. It's an open — in exchange for your willingness to plead guilty — I take it we'll reset this for a punishment hearing at a later date. This would basically be an open plea to that range of punishment, 15 years in the penitentiary up to 99 years or life, again, understanding that no probation of any kind is an option for the Court. Do you understand that?

[appellant]: Yes.

[trial court]: Let's see here. Anybody promise you anything other than that?

[appellant]: No.

After appellant had pleaded "guilty," and at the beginning of the punishment hearing the trial court described the case as follows:

[trial court]: Okay. We're here on an open plea; correct?

[appellant's attorney]: Yes, sir.

[trial court]: Technically, it was a negotiated plea just removing deferred adjudication from the table with the effective punishment range being 15 years to 99 years to life and a fine not to exceed $10,000. Correct?

[appellant's attorney]: Correct.

Though the trial court first stated that the case involved an open plea and then stated that it involved a negotiated plea, the trial court did not mention any consideration given by the State. At no time during the punishment hearing did any person mention any consideration given by the State in exchange for appellant's Waiver of Appeal.

The record in this case does not show that the State provided appellant with a benefit as part of a bargained-for exchange that would supply the requisite consideration for appellant's Waiver of Appeal. See Simon v. State, 554 S.W.3d 257, 262-63 (Tex. App.—Houston [14th Dist.] 2018, no pet.); Jenkins v. State, 495 S.W.3d 347, 352 (Tex. App.—Houston [14th Dist.] 2016, no pet.). The State did not agree to or recommend any punishment in the Plea Papers or by any other means before appellant pleaded "guilty" and made the Waiver of Appeal. Thus, appellant's punishment remained uncertain when appellant made the Waiver of Appeal. The State did not agree to waive the enhancement paragraph or allow appellant to plead "guilty" to a lesser-included offense. Appellant could not receive the benefit ofcommunity supervision because she was not eligible based on her "guilty" plea and plea of "true" to the enhancement paragraph. See Tex. Crim. App. Pro. Ann. art. 42A.053. Nor could appellant obtain the benefit of deferred adjudication because appellant agreed that she would not request or receive deferred adjudication. Nothing in the record reflects that the State did not want to consent to a jury-trial waiver but appellant induced the State to do so by waiving her right to appeal. Though the State signed the Plea Papers, the State did so for the stated purpose of joining, consenting to, and approving of the stipulations of evidence and the waiver of jury trial. The State did not say that it agreed to be bound by the Plea Papers, and even if the State had done so, the document does not contain any provision in which the State gives appellant a benefit or agrees to give her a benefit. The record does not show that the parties bargained for the State's consent to appellant's waiver of a jury trial or that the State otherwise attributed negotiating value to this purported consideration. See Simon, 554 S.W.3d at 262-63; Jenkins, 495 S.W.3d at 352. The record shows that the State did not bargain for appellant's Waiver of Appeal and that appellant did not know with certainty the punishment that the trial court would assess when appellant entered her plea. The record shows appellant's Waiver of Appeal is...