## IN THE COURT OF CRIMINA L A PPEA LS OF TEXA S
NO. WR-90,880-02

EX PARTE DENNIS JACOB CASTILLO, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W-28189-B-2 IN THE 181 S T 

### DISTRICT COURT

F ROM RANDALL COUNTY
K E L L E R 

### , P.J., delivered the opinion of the Court in w hich Y E A R Y 

### , K E E L 

### , S L A U G H T E R 

### and M C 

### C L U R E 

### , JJ., joined. H E R V E Y 

### , R IC H A R D S O N 

### a nd N E W E L L 

### , JJ., concurred. W A L K E R 

### , J . , dissented . W e consider h ow to proceed when a d e fendant timely ex presses a wish to a ppeal, no notice of appeal is filed, and the trial court’s certification say s that there is no rig ht to appeal because the conviction is the result of a plea ag reement. B ecause a d ef e n d an t i n t hat situation had no rig ht to appeal, he suffers no prejudice even if counsel performed deficiently in failing to file a n o tice of appeal. Althoug h the Supreme Court has concluded that a presumption of prejudice applies when

a defendant waives an appeal, this case concerns a certification showing no rig ht to a p p e a l r a t her than mere waiver o f appeal. Althoug h a waiver mig ht not completely e x t i n gu i s h e v e ry possible appellate claim, a person in Applicant’s situation has ex ting u ished every possible appellate claim.CASTILLO — 2 I. RELEVANT STATUTES AND RULES There is no federal or Tex as constitutional rig h t to appeal a criminal conviction; any rig ht
to appeal is conferred solely by statute. 1 I n Tex as, a d efendant who pleads g uilty pursuant to a plea barg a in that the trial court follows has no statutory rig ht to appeal , e x c e p t as to matters raised in writing before trial, when t h e t r i a l court g ives p ermission to appeal, o r in certain cases involving appeals from justice or municipal courts (specified in a different statute). 2 I n line with statute, the

a p p licable appellate rule provides only three situations in which an appeal is a llowe d i n a p l e a barg a in case: (A) those matters t hat were raised b y written motion filed and r uled on before trial, (B ) after g etting the trial court' s permission to appeal, or ( C) where the specific a ppeal is ex pressly authoriz ed by

statute. 3 W e have held that those situations are ex clusive; in any other situation, no appeal is a

uthoriz ed, even w hen the challeng e is jurisdictional or is to the voluntariness of the plea. 4
II. BACK G ROUND Applicant pled g uilty pursuant to a plea barg ain. T h e trial court’s certification form in this

case display s five checkbox es detailing five options reg arding the r ig ht of appeal. Two options are

1 McKinney v. State , 207 S.W .3d 366, 374 (Tex . Crim. App. 2006).

2 T E X

. C O D E C R

I M

. P R O C

. a rt. 44.02. Art. 44.02 specifies that the prohibition ag ainst appeal applies when the defendant pleads g uilty o r nolo c ontendere and “the punishment does not ex ceed the punishment recommended by the prosecutor and ag reed to by the d efendant.” Id. A ppeals under Art. 44.17 a

r e e xe m p t e d f rom the statutory prohibition ag ainst appeals in these ag reement-ty pe cases. Id. Article 44.17 deals with certain appeals from justice and municipal courts. Id. art. 44.17.

3 T E X

. R. A P P

. P. 25.2(a)(2). The term “plea barg ain” has a specific meaning under the rule, in line with the lang uag e of the statute. See id. ( “a case in w h i c h a defendant’s plea w a s g uilty or nolo c ontendere and the punishment d id not ex ceed the punishment r ecommended by the p rosecutor and ag reed to by

the defendant”).

4 Griffin v. State , 145 S.W .3d 645, 648-49 (Tex . Crim. App. 2004).CASTILLO — 3

checked, say ing that the case “is a p lea barg ain case and the defendant h as NO rig ht of appeal” and that “the defendant has waived the rig ht of appeal.” L eft blank are the following options: the case “is not a plea-barg a in case, and the defendant has the r i gh t of a ppeal,” the case “is a plea-barg ain
case, b ut matters were raised by written motion f iled and ruled on before trial and not withdrawn or waived, and the defendant has the r ig ht of appeal,” and the case “is a plea-barg ain c ase, but the trial
court has g iven permission to appeal, and the defendant h as the rig ht of a ppeal.” Applicant and his trial attorney

sig ned the certification form. No notice of appeal was filed. 5
I n this habeas a

p pl i c a t i o n , A pplicant contends, as pertinent here, that trial counsel was ineffective for failing to file a notice of a p p ea l

. T r i al counsel responded that on the day of Applicant’s plea, A pplicant’s mother sent a messag e say in g t h a t Applicant wanted to appeal. Counsel said he emailed the trial c ourt and asked that appellate counsel be appointed because trial counsel did not handle appeals.
I n its finding s, the habeas c ourt ag reed with trial counsel’s recitation of events. T h e court further f ound that, a lthoug h trial counsel requested the appointment o f a ppellate counsel, he did not file a notice of appeal. The cou r t a l s o f ound that Applicant would have timely filed a notice of appeal b ut for counsel’s m i s t ak e n b elief that his email notification to the court would suffice to protect Applicant’s righ t to appeal. 6

5 The record a lso includes a waiver of appeal sig ned by Applicant and his trial attorney

. I t states that, after being informed of h is appellat e r i g h t s , A p p l i c a n t d id “hereby voluntarily , knowing ly , and int e l l i gently waive my rig ht to appeal. This w aiver of appeal includes the w a iver o f my rig ht to appeal the issue of whether my plea was voluntarily and understanding ly made.”

6 The habeas court also found that, twenty da y s l a ter, Applicant’s mother sent another messag e to counsel, sug g esting that Applicant had chang ed his mind and no long er wished to appeal. B u t the habeas court further found that trial c ounsel, ha v i n g already informed the trial court of Applicant’s desire to appeal, disreg a rded that messag e and did not confer directly with Applicant toCASTILLO — 4 III. ANALYSIS Under G arza v. Idaho , even w hen a defendant has waived appeal, his attorney h as a duty to file a notice of appeal if the defendant so requests, a n d t here is a presumption of p rejudice if the notice is not filed. 7 T he Supreme Court ex p licitly based this presumption of prejudice on the fact that “no a ppeal waiver serves a s an absolute bar to all appellate claims.” 8 On the certification form
in Applicant’s case, o ne of the options c hecked is that Applicant waived his rig ht to appeal. I f that were the only

option checked, then

Garza would control.
B u t there is another reason that Applicant cannot appeal in this case. This is not a case where Applicant h ad a rig h t to appeal and waived it. He did not in fact have a r ig ht to a ppeal to beg in with.
I n conformity with the appellate rules, the c ertification form set o ut five options. 9 One of the options selected o n Applicant’s c ertification form was that the c ase was a plea-barg ain case and Applicant had no rig ht of appeal. The pretrial-motions a nd permission-to-appeal options were not selected on Applicant’s form, so those two statutory bases for appealing in a plea-barg ain case are not at issue. This case does not involve an appeal from a justice or municipal court, and we know of no statute that would authoriz e Applicant’s appeal despite the plea-barg ain status of the case, so situation (C) in the appellate rules does not apply

. Consequently , the statement in A pplicant’s c ertification form

confirm or disconfirm his wishes with respect to an appeal.

7 139 S. Ct. 738, 749-50 (2019).

8 139 S.Ct. at 744, 749-50 (“ [ T] he presumption of prejudice recog niz ed in Flores-Ortega applies reg ardless of whether a defendant has sig n ed an appeal waiver. This ruling follows squarely from F lores-Ortega and from the fact that even the broadest a ppeal waiver doe s n o t d e p r i ve a defendant of all appellate claims.”).

9 See T E X

. R. A P P

. P. 25.2 & Appendix D.CASTILLO — 5

that he has no rig ht of appeal reflects that Applicant had no rig ht to appeal any i s s u e i n t h e c a se. Althoug h Applicant purported to waive a rig ht to appeal, he in fact had no rig ht to a ppeal to waive.
Even thoug h a waiver is not an absolute bar to a ll possible claims when a d efendant w aives a rig ht
to appeal that he w ould otherwise h ave had, Applicant’s situation is different because he never had

a rig ht to appeal to beg in with. B ecause h e does n ot f it within any of the narrow situations that allow

a p p e als by plea-barg a ining defendants, he never had a r ig ht to appeal at a ll and, conseq u e n t l y , a l l possible appellate claims were barred in his case.
I mportantly , Applicant was still represented by trial counsel when the certification form was

crea t e d. Trial counsel sig ned it and Applicant himself sig ned it. T h e certification confirms that Applicant had no statutory rig h t to appeal

. Be c a u s e t h e certification shows an absolute bar to all appellate c laims in Applicant’s case, his attorney ’s failure to file a notice of appeal did not prejudice him.
F inding no meritorious claims, 1 0 we deny relief. Delivered: October 12, 2022 Publish

1 0 Applicant presents one other claim in h is habeas a pplication. W e deny it based on trial counsel’s affidavit and the habeas trial court’s finding s.