## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

_____ ______________________ No. 02

- 22

- 00261

- CR No. 02

- 22

- 00262

- CR

________ ___________________

On Appeal from the 462nd District Court Denton County, Texas Trial Cour t No s . F22

- 524

- 462, F22

- 525

- 462

Before Sudderth, C.J.; Kerr and Walker, JJ. M emorandum Op inion on Rehearing by Justice Walker 

### L EE 

### V AUGHN 

### J R



### . , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDU M OPINION ON REHEARI NG 1
A ppellant Lee Vaughn , Jr . was convicted by a jury on charges of possession of
a controlled s ubs tance and possession of a controlled substance with inten t to deliver ( the Jury Convictions)

. The jury sentenced him to 2 year s ’ a nd 16 y ears ’ confi nemen t respectively. After the pronouncement of V a ughn ’ s sentence for th e Jury
Convictions , a plea hearing was held at which Vaughn pleaded guilty to two other

outs tanding charges, one fo r felony assault and one for po sse s sion of marij uana (the Agreed Convi ctions)

. Vaughn seeks to appe al only the Jury Convictions , but the State has filed a motion to dismiss, arguing that Vaug hn waived his right to appeal those

c onvictions

. We agree with the Stat e a nd w ill dis miss Vaughn ’ s appeals.
In exchange for V aughn ’ s guilty plea on the fe lony assault charge, the State agreed to reduce the charge to misdemeanor assault an d to recommend his punishment to be one year in jail

. On the possession o f ma rij u an a cha rge, V a ughn agreed to plead guilty for a recommended sentence of 12 months in state ja il. The trial court accepted th ese plea agree ments. At the plea hearing for th e Agreed Convictions, the following ex change
occurred :

1 We issued our original memorandum opinion on March 23, 2023

. Vaughn then filed a motion for rehearing. We deny V a ughn ’ s motion for r e hearing as m oot , with draw our prior memorandu m opi nion , a nd substitute this memorandum opinion
on re hear ing in its place

.3 Trial C ourt : My u nder standing also is that as part

- - once the jury re turned this that your attorney , with your agreement, and the St a te of Texas have worked out where you are gonna be d isposing of t he other two cases by plea and that

- - and in addition to tha t, y ou wil l 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 an other lawyer at this point since you ’ ve waived appe al? Vaughn: Yes ma ’ am. Bot h of the trial court certification s for the Jury Convictions were originally marked as showing that Vaughn had a right to appeal. How ever, they were amended

to reflect that Vaughn had in fac t waived this righ t , an d Vaughn ac knowledge d the
amendments with his initials:

The certifications were also signed by the trial court, Vaug h n, and Vau g hn ’ s t rial
attorney.4

Five d ays af

ter the plea hearing, V a u ghn comple ted an application and affi davit of indigency which requested the trial court to app oint him co unsel. The trial court
then entered its “ F INDING REGARDING IND IGE NC E A ND ORDER
APPOINTING COUNSEL * * F OR APPEAL * * ” (Indigence Order). The caption
of th e Indigence O rder contains all f our cause numbers representing the Jur y Convictions and Agreed Convictions. Th e Indigence Order found “ that [Vaughn] i s i nd ig e nt, or justice otherwise requires appointm ent of counsel ” and appoi nted Vaugh n ’ s appellate counsel to represent him. At the bott om of the Indigence Order
is a hand written note that states: “ Pleas e note that Vaughn waived appeal on all cases
as par t o f pl e a b argain on remaining cases. ” Vau ghn did not fi l e a motion for new

tr ial and did not raise the issue of invol untar y waiver in h is notice of appeal or in his appellate brief

. 2 In its motion to dismiss, the State a rgues that th e record shows tha t V aughn knowingly, intel ligently, and volun tarily waived his right to appeal th e J ury Convictions. In response, Vaughn generally den ied all of the allegations i n the State ’ s motion and filed an affidavit in which he attested that :

• “ I was represented at trial by John Holla nd

. ”

2 Vaughn file d his appel lant ’ s brief on January 11, 2 023; the sole issue raised in his brief concerns jury charge error.5

• “ At the conclusio n of my trial, I me t with my attorne y, Mr. H o lland. Mr. H o lland advi se d me of my right to app eal the verdicts and sentences in [the Jury Conviction cases]. I advised Mr. H o lland that I wished to appeal

. ”

• “ I rec al l signing a document indicating I wished to appeal. I initialed nex t to the o ption indica ting I had the r ight to appeal. Mr. H olland sign ed this document as well

. ”

• “ Mr. H o lland advised me that the State had offered to plead the [Agreed Conviction] cas es if I agreed to waive trial and waive app eal on those cases. I agre ed. I sig ned paperwork admitting guilt, pleading guilty, and waivi ng t rial and appeal in those cases

. ”

• “ At no time did I s ign paperwork waiving appeal in [the Jury Conviction cases]. At no time did I voluntarily agree to waive appeal in those c ases . ”

• “ I have rev

i ewed the State ’ s motion to dismiss this appeal. To the exte nt the waiver relied upon by the State was made, it was made unintentionally and involuntarily. ”

• “ I have reviewed th e trial court ’ s certification of appeal i n these cases. I acknowled ge my sign ature and initials on that document. I acknowledge that the certification now appears to state I waived appeal. How ever, the version of the document I signed indicated I had th e right to appeal, and I intended my sign ature to mean that I wished to appeal those cases. ”

• “ I have revie wed the transcript of my pl ea h earing. I acknowle dge the trial court ’ s admonition that I would be ‘ waiving appeal in the two cases that went to j ur y trial. ’ I acknowledge my affirmative a nswer, however at the time of that
co lloquy , I must have been confused about which cases the t rial court was referencing. ”

• “ I agreed to waive appeal in the two cases I pled guilty to. I did not intend to waive a pp e al in [the Jury Conviction cases], and I would not have agreed to a n y plea ag reements that included such a waiver.6

Thus , Vaughn ’ s a rgum ent in opposition to the State ’ s motion is that he
mi sunderstood the situation when he orally waived appea l o f the Jury Convictions and
when he initi al ed the trial court certif ications i ndicating the same

. A defendant in a crimi nal action has a right to appeal. Tex. Code Crim

. Proc.
Ann. art. 44.02. But a defendant in a non

- cap i t al case ma y waive any right s s ecured to him by law, including his righ t to appeal. Tex. Code Cri m. Proc. A nn. art. 1.14(a) ; Ex parte Delaney , 207 S.W.3d 794, 79 6 (Tex. Crim . Ap p. 2006). A valid waiver of appeal prevents a defendant from appealing withou t the trial court ’ s consent. D ela ney , 207 S.W.3d at 796. “ A valid wai ver of the right to appeal is one tha t was made voluntarily, knowingly , and intelligently. ” Id

. at 796

– 97. W hen a defendant waives his right to appeal as part of an agreement on sente n cing and t he trial court fo ll o ws the terms of that agreement, the waiv er is made knowingly, intel li gently, and voluntarily.
See id. at 798

– 99; Blanco v. State , 18 S.W.3d 21 8, 2 19

– 20 (Tex. Crim. App. 2000). Such a waiver can be made orally or in writing. Moreno v. State , 327 S.W.3 d 2 67, 268 (Tex. App.

— San Antonio 2010, no pet.)

. A n appeal must be d ismissed i f 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 , 1 54 S.W.3d 610, 61 4

– 1 5 (Tex. Crim. App. 2005). In light of the rec ord before us, we mu st dismiss Vaughn ’ s appeal s . The record
establishes that h e made a knowing, int elligent, and voluntary waiver of his right to appeal the Jury Convictions a t t he plea hea ring as part of hi s plea bargain s on the7

Agreed Convictions

. Vaughn ’ s attorney was pr esent w hen Vaughn made th is oral
waiver , and no objection or other protest w as r aised against it. The t rial court accepted and sentenced Vaughn in keeping with the plea bargain s . Vaughn ’ s waiver

was also reduced to w riting i n b oth the Indigence Order and the trial court certifications

—

w hich V a ughn signed and initialed indicatin g tha t he approved the
amendments from “ defendant has the right of appeal ” to “ defendant has waived the right o f a ppeal. ”
We also note that at no point prior to responding to the S tate ’ s mot ion to
dismiss did Vaughn ever highlight , all ege , or s eek to deve lop any particular facts to
support his contention that his waiver was involuntary. See Stanley v. Stat e , 111 S

. W.3d 773, 775 (Tex. Ap p
. — Fort Wort h 2003 , no pet. ) (op. on reh ’ g) ( d ismissing appeal
because there was no evidence in the record to support app ella nt ’ s allegations of involuntary waiver and because appellant did not file a motion for new trial in an

att em p t to esta blish such evi dence); Smith v. State , 858 S.W.2d 609, 611

– 1 2 (Tex. Ap p.

— Amarillo 1993, pet ref

’ d) (holding that appellant was not enti tled to evidentia r y hearing to develop evidence of inv oluntary waiver of right to appeal when he did not
first r a ise the issue with the trial court or by a moti on for new trial) ; se e also Ex parte
Tabor , 565 S.W.2d 945, 946 (Tex. Crim . App. 19 78) (op. on r eh ’ g ) ( declining to
consider issue of waiver of right to appeal because “ [t] here were no allegations or
pro of at the habeas corpus proce edings that the w aiver of the right of appeal was8

coerc ed or involuntary, and the re is nothing in the record suggesting coer cion or
involuntariness ” )

. F or the reasons set forth above, the record does not support V a ughn ’ s

content io n of involuntar y waiver s of appeal

. H is attestations that he misunde rstood
the proceedings are not enough to overcome the clear waiver s he made to the court

— both orally and in writing

— in the presence of his at torney. See Byland v. State , No. 08

- 06

- 00309

- CR, 2006 WL 3683843, at * 1

– 2 (T ex . App.

— E l Paso Dec. 14, 2006, no
pet .) (mem. o p., not designated for publication) ; Warren v. State , No. 09

- 96

- 0 98 C R, 1998 WL 44935, at *1

– 2 (Tex. App.

— Beaumont Feb. 4, 1998, no pet.) (not designated for pu blication); Smith , 858 S.W.2d at 611

– 12

. Acco rd i ngly , we must dismiss Vaughn ’ s appe al s . /s/ Brian Walker
Bria n Walker Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Deliver ed : April 20, 2 023