Order issued August 1 8 , 2020

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 18
- 00378
- CR

——————————— ANTONIO FIDEL GARCIA , Appella nt

V. THE STATE OF TEXAS , Appell e e

O n Appeal from the 185th District Court

Harris County , Texa s Trial Court Ca se No. 1527904

MEMORANDUM ORDER Antonio Fidel Garcia pleaded guilty to possession of between 4 and 200 grams of cocaine and pleaded true to an enhancement . After a punish ment hearing, the trial court sentenced him to 50 years ’ i mprisonme n t

. On appeal, he argues that he re ceived ineffective assistance of counsel becau se his counsel did not present2

his motion for new trial to the court and failed to attach a signed, sworn af fidavi t

. H e argues that this error forfeited a hearing on h is motio n f o r new trial and amounted to constructive denial of effective a ssistance of counsel during a critical stage of the proceeding. The trial c our t certified that Garcia had a right to appea l. After reviewing the record, we conclude that the cer tification i n t h e record stating that the trial court
g ranted Garcia permission to appeal is erroneous , and we do not have jurisdiction to consider the appeal

. We order the trial court to a mend the cer tification

. Background Garcia was in possession of 120 grams of co ca i n e w hen stopped for a traffic violation . He was c harged by indictment with possession with intent to deliver between 4 and 200 grams of cocaine. The indictment alleged an enhancem ent bas ed on a previous felon y conviction. Garcia also had a pending murder char ge . He proceeded to trial on the drug case , and whi le the j ury was deliberating, he pleaded guilty to possession of between 4 and 20 0 grams of cocaine and the punishment enhancement . Ther e was no punishment agreement

. At the punishment hearing , the St ate pr e s ented evidence of his pr ior convictions and other extran eous offenses and conduct , including the murder

. The trial court sentenced Garcia to 50 years ’ i mprison ment.3

Tr ia l counsel filed a notice of appeal and mo v ed to withdraw in April 2018

. The t r ial co u r t granted the motion to withdraw but did not appoi nt app ellate counsel. Garcia hired a new attorney who filed a motion for new trial bef ore the period for filing such motions closed. The m o tion was overruled by operation of law. Counsel di d not fi le a n a p pellate brief on behalf of Garcia

. In January 2019, this court abated the appeal an d remanded t o the trial court for an evidentiary hearing to determine whether appellate counsel had aband o ned the appeal by failing to file a brief, whether appellan t wa s i n digent, and , if initial appellate counsel had not abandoned the appeal, to make appropriate f indings as to why counsel did not file a brief and s et a date for filing it. The tr ial court pe rmitted the attorney to withdraw and appointed new r eprese nt atio n f o r Mr. Garcia on appeal.
This court lifted the abatement and reinstated the appeal. Jurisdi ction Preliminarily, the State argues that we do not have jurisdiction to hear Garci a ’ s appeal. The State argues that the ce rtification document s i n the rec ord ar e incorrect and that the record reflects that Garcia waived hi s right to appeal. A. Standard of Review Jurisdiction mu st be expressly given to the courts of appeals in a statute.
R agston v. St at e , 424 S.W.3d 49, 52 (Tex. Crim. App. 2014). The s tandard fo r4

de t e rmining jurisdiction is not whether the appeal is precluded by law, but whether the appeal is authorized by law. Id.
B. Law The Texas Rule s of Appellate P r ocedure require t he trial co urt to c ertify the
defendant ’ s right of appeal in every case in whic h it e n t er s a judgment of guilt or appealable order

. T EX
. R. A PP
. P. 25.2(a)(2). The certification becomes part of the trial court record. I

d

. 25.2( d). The proper form for Certification of Defenda nt ’ s Right of Appeal is contained in Appendix D of t he suppl emen t t o the Texas Rules of Appellate Procedure. * The choices on the form include the following:

• not a plea

- bargain case and the defendan t has the right of appeal ;

• a plea

- bargain case in wh ich t he defendant has the right of appeal because matters were ra ised b y a written motion file d and ruled on befor e trial and not withdrawn or waived ;

• a plea

- bargain case in w hich the defendant has the ri ght to ap peal because the trial court has given perm issi on to appeal;

• a plea

- bargain case in which the defe ndant ha s no r i g ht of appeal;

• or a case in which the defe ndant wai ve d his right of appeal. Rule 25.2(a)(2 ) specifies that in a plea

- bargain c ase in which the punishment did not exceed the punishment r ec ommended by the prosecutor and a greed to by

* Court of Criminal Appeals, Practi ce Before the Court

- Forms , https:// w w w.txcourts.gov/media/1442928/cer ti fication

- of

- defendants

- right

- of

appeal

- rev - 20 18.pdf (last visited July 2, 2020).5

the defe ndant , a def

en d a nt may appeal only matter s that were raise d by written motion filed and rule d on before trial or after receiving the trial cour t ’ s permission
to appeal. T EX
. R. A PP
. P. 25.2(a)(2).
An a pp ellate court must review the record to determine if the cert ific at i o n is defective. J

ones v. State , 488 S.W.3d 801, 8 05 (Tex. Crim. App. 2016). A certification that is correct in form but in accurate when compar ed to the record is defective. Id. at 804

– 05

. When a c ertification has a defect or omi ssion, it ma y be

am e nded u n d er certain circumstances. T EX
. R. A PP
. P. 25.2(f). After the appellant ’ s brief is filed, the certification may only be amended on leave of the appellate court
and on such terms as the cour t may prescribe. Id. C. Analysis We first determine whe ther Gar cia wa i v ed his right t o appeal. T he righ t to appeal may be waived, and such a waiver is valid if made vo luntarily, knowingly, and intellig ently. Ex parte Delaney , 207 S.W.3d 794, 796

– 97 (Tex. Crim . App. 2006). A waiver of appeal prior to sentencing may be vali d i f it is bar gain ed for, tha t is, if the State gives some consideration for the waiver, even if a s entence is
not agreed upon. Ex parte Broadway , 301 S.W.3d 694, 6 98

– 99 (Tex. Crim. App. 2009)

. To determine t he validity of a waiver of a right t o appeal and t h e terms of
any ag reement bet ween appellant and the State, we consider the written plea6

documents an d the formal record in light of gen eral contract principl es. S ee Jones , 4 88 S.W.3d at 805 ; Ex parte De Leon , 400 S.W.3d 83 , 89 (Tex. Crim. A pp . 2013).
Ga rc i a pleaded guilty pursuant to a charge bargain. A charge bargain is a type of plea bargain that involv es questions of whether a defendant w ill plead guilty to the offense that has been alleg ed or to a lesser or related offense and of whethe r the pros ecut or w ill dismiss or refrain from bringing other charges. Thomas
v. State , 516 S. W.3d 498, 502 (Tex. Crim . App. 2017). An agreemen t to dismiss a pending charge , or not to bring an availa ble ch ar ge, effectively puts a cap on punishment at the ma xi mum sent ence f o r the charge that was not dismissed.
S h ankle v. State , 119 S.W.3d 808, 813 ( Tex. Crim. App. 2003). The record shows that Garci a agreed to plead guilty to possession , which is a second

- degr ee felony, and waive his right to a jury tria l and h is right of ap p e al.
T EX
. H EALTH & S AFETY C ODE § 481.115(d) ( possession of between 4 and 200 grams is a second

- degree felony). In exchange, the State agreed to abandon the possession with intent to deliver charge, which had a mandatory minimum
sentence of 1 5 years ’ imp ri s o nment

. Garcia ’ s plea allowed him to avo id a minimum punishment of 1 5 years in prison if he was found gui l ty of a first

- degree felony

. S ee Jones , 488 S.W.3d at 807. A s a second

- degre e felony, the range of punishment for the possession charge was bet ween t w o and twenty years, but with the alleged enhancement, the range of pu n ishment increased to 5 to 99 years or7

life

. T EX
. P ENAL C ODE § § 12.42(b) , 12.32(a)

. Since Garcia ’ s plea was made pursuant to a charge bargain, his appeal is subject to the requirem ents f o r appeals in plea

- bargain cases. See Tho mas , 516 S.W.3d at 5 02 ( s tating that agreement to forg o prosecution for a pending charge in exchange for a plea to a le sser offense effectively places a cap on the possible punishment and is a plea bar gain for
pur po s e s of Rule 2 5.2 )

. Because this is a charge

- barga in case, Garcia may : (1) a ppeal matters raised by written motion and rule d on before trial; (2) appeal after receiving the trial
court ’ s permission to do so ; or (3) appeal when authorized by st a tute

. T EX
. R. A PP
. P. 25.2(a)(2); see T EX
. C ODE C RIM
. P ROC
. art. 4 4.02; Thomas , 516 S.W.3d at 502. Having determine d that Garcia pleaded guilty p ursuant to a charge bargain and validly waived his right of appeal, w e review the c ertification s to ensure th ey

co nfo rm to t h e r ecord

. The trial court signed two certifications of defendant ’ s right of appeal. The first, dated March 28 , 2018, has a checkma rk next to the line “ is a plea

- bargain case, bu t the trial court has given permission to appeal and the
defend ant h as the ri g h t o f appeal

. ” The second certif ication , signed A p ril 24, 2018 , has a checkmark next to the line “ is a plea

- bargain case, b ut matters were raised by written motion filed and ruled on b efore trial, and not withdrawn or wai ved , and
the d e f end ant has t he right to appeal

. ” The second certification was signed afte r the8

n otice of appeal was filed. Both certif ications are signed by Garcia and his trial counsel. Garcia does not appeal any pre trial motions, and he does not ar g u e t hat he has a statutory righ t to appeal. Therefor e, we have jurisdiction to review the appeal only if the trial court gave Garcia permis sion to do so. T EX
. R. A PP
. P. 25.2(a)(2)

. We review the record to determine if the first certificatio n , giving tha t p erm ission, is supported by the r ecord. The State argu es that t he first certification is contrary to the record beca use the trial judge did not give Garcia permission to appeal. Garcia signed a Waiver of
C o nstitutional Rights, Agreement to Stipulate, and J udi cial C o nfession in the
po sses sion case, in which he confesse d that the allegations against him are true. That doc ument states: “ I intend to enter a plea of guilty and the prosecutor will recommend that my punish ment should be set at PSI [ presenten ce i n v est igation hearing] and I agree to that recommendation

. . . . I waive any right of appeal which I may have should the court accept the foregoing ple a barga i n agreement between myself and the prosecutor

. ” Th e Advice of Defendant ’ s Right to Ap pe al signed by
G arc ia states: “ If you waived or gave up your r ight to a ppeal, you cannot appeal
y our conviction

. ” T he judgment signed by the trial court s tates, “ APP EAL
WAIVED . NO PERMISSION TO APPEAL GRANTED

. ”9

Besides the documents si gne d by Garcia w a i v ing his right t o a jury trial and right of a ppe al, th e record contains a document signed by the prosecuto r indicating the State ’ s agreement to abandon the possession with intent to deliver charge with the understanding that Garcia w ould plead guilty wi tho u t an agreed s e n tencing

re commendation to a po ss ession charge. Garcia ’ s trial counsel stated on t he record
that the State was reducing the charge a nd dismissing the murder charge in exchange for his plea

. The recor d ref lects that in conf

irming whether h e u nderstood his p l ea, the trial court informed Gar cia that he “ would have only a very limited rig ht to appeal [his] case

. ” T he record do es not reflect that the trial court gave Garcia permission to appeal. The certification stating that t he trial court g ave Ga rcia permis s i on to app eal is contrary to the record. Where the record affirmatively shows no right of appeal, we must order the trial court to amend the certification to correct the defect in the certification and give both parties ad vance not ice of our intent to dis m i ss the
ap peal. T EX
. R. A PP
. P. 4 4 .3, 4 4.4; Menjivar v. State , 264 S.W.3 d 137, 142, (Tex. App.

— Houston [1st Dist.] 2007, n o pet.)

.10 Conclusion We notify all parties that our review of the record indicates that the certif ication giving G ar c ia permission to a ppeal i s defective , and we lack jurisdiction to review the appeal . We o rder the trial court t o correct the defective
cert ification within 30 days from the date of this order.

Peter Kelly Justice Panel consists of Chi ef Justice Radack a n d Justices Kelly and Goodman.
Do not publish. T EX
. R. A PP
. P. 47.2(b).