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 Court Nos. F22-524-462, F22-525-462

Before Sudderth, C.J.; Kerr and Walker, JJ.

Memorandum Opinion on Rehearing by Justice Walker

LEE VAUGHN JR., Appellant

V.

THE STATE OF TEXAS
2

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:

1We 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.
3

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. 
4

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.”

2Vaughn filed his appellant’s brief on January 11, 2023; the sole issue raised in 

his brief concerns jury charge error.
5

• “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. 
6

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 
7

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 
8

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