1... See TEX. R. APP. P. 47.4.

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-07-233-CR

MATTHEW ERIC DEVER APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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Appellant Matthew Eric Dever pleaded guilty to possession with intent to

deliver over four grams but less than 200 grams of methamphetamine. A jury

assessed punishment at fifty-five years’ confinement and a $5,000 fine. In two

points, Appellant argues that his guilty plea was involuntary because the trial

court failed to admonish him regarding deportation and because the trial court

did not advise him of the range of punishment until after he had pleaded guilty
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in front of the jury. The State has filed a plea to the jurisdiction, arguing

that—contrary to the trial court’s certification—Appellant has no right to appeal

because this is a plea bargain case. We grant the State’s plea to the

jurisdiction and dismiss the appeal.

Procedural History

The grand jury originally indicted Appellant for possession of a controlled

substance in November 2006, and it reindicted him for possession with intent

to deliver on June 13, 2007. At his arraignment hearing on June 18, 2007, the

prosecutor stated on the record,

It is my understanding that the Defense will waive their ten

days, and that the Defendant intends to plead guilty to the firstdegree delivery case to the jury and ask the jury to assess his

punishment and in exchange provided that the jury returns a verdict

that is final, the State will not prosecute Mr. Dever in any

subsequent trials for the other several cases that he has pending.

Appellant’s trial counsel then examined Appellant under oath, as follows:

Q. You know we are set to start the trial and we have a jury on

their way right now.

A. Yes, sir.

Q. I believe you have 11 pending felony cases that are out there

against you. There may be a 12th because one was a

reindictment. You understand that the case we are talking about

that you are going to plead guilty to is actually one of the old cases

that kind of got a new number and they added the delivery part of

that. Do you understand that?
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A. Yes, sir.

Q. Do you understand that included in some of your offenses, you

have what they call 42.12, 3(g) offenses? Do you understand

that?

A. Yes, sir.

Q. You also understand on those type of offenses, that even for

the purpose of parole and good time, you understand that the

parole eligibility is at half of that, whatever your sentence is, and

you do not get any good time credit for any 3(g) offenses. Do you

understand that?

A. Yes.

Q. You have a couple of those cases pending against you. This

case that we are going to try is not a 3(g) offense. It actually is a

non 3(g), which means your parole eligibility would only be a

quarter time. Do you understand that?

A. Yes, sir.

Q. And you understand what I mean by quarter time?

A. Yes, sir.

Q. That’s less than half. For example, if you had a 60-year

sentence, that would be computed at 15 years, right?

A. Yes, sir.

Q. You also understand that on a non 3(g) offense, that you also

get credit for good time on your case for the time you spend in jail.

Do you understand that too?

A. Yes.

Q. Do you understand that is not possible on a 3(g) offense?
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A. Yes, sir.

Q. Knowing all that, we have discussed this and I went over -- I

think I saw you three times in the jail last week; and knowing all

that and my discussion with you today, you are willing to waive

the ten days that we have to prepare for the case, plead guilty to

jury and let the jury decide what the punishment is for this case?

A. Yes, sir.

Q. With that understanding, all those other cases, I believe the

State said that they would do a DM2 or dismiss the other cases, so

it is a one-time shot right here. As long as the jury comes back --

and what they meant by that was they can’t be a hung jury. They

have to have a final verdict. If they do that, that’s it.

What they come back with is what you live with, and

everything else is gone. Is that how you understand it?

A. Yes.

Q. Knowing all that, is that what you want to do?

A. Yes. 

Appellant then pleaded guilty for purposes of the arraignment. 

The parties then selected a jury. Immediately after voir dire and outside

the jury’s presence, the trial court admonished Appellant on the record.

Appellant persisted in pleading guilty, and the trial court accepted his plea. The

punishment-phase evidence included extensive testimony about other crimes

Appellant had allegedly committed. The jury assessed punishment at fifty-five

years’ confinement and a $5,000 fine. The trial court sentenced Appellant
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accordingly. The trial court certified that “this criminal case . . . is not a pleabargain case, and the defendant has the right to appeal.” See TEX. R. APP. P.

25.2(a)(2), (b).

Jurisdiction

The State argues in its plea to the jurisdiction that notwithstanding the

trial court’s certification, this is a plea bargain case and Appellant has no right

to appeal. When a complete record is present, an appellate court is obligated

to examine that record so as to ascertain whether the trial court’s certification

is defective. See Dears v. State, 154 S.W.3d 610, 614–15 (Tex. Crim. App.

2005). A complete record is present in this case; thus, we must examine the

entire record in light of controlling precedent to determine whether the trial

court’s certification is defective.

The State relies on Shankle v. State for the proposition that a defendant

has no right of appeal under article 44.02 of the code of criminal procedure

when the defendant enters into a “charge-bargain,” that is, a plea bargain

where the defendant agrees to plead guilty to one charge in exchange for the

State’s promise not to prosecute the defendant for other charges. 119 S.W.3d

808 (Tex. Crim. App. 2003). In Shankle, the Court of Criminal Appeals

described two basic kinds of plea-bargaining in the United States:

“charge-bargaining” and “sentence-bargaining.” Id. at 813. In
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“charge-bargaining,” a defendant agrees to plead guilty to the offense formally

alleged or to some lesser or related offense and the State agrees to dismiss, or

refrain from bringing, other charges. Id. “Sentence-bargaining” may occur

when the parties place before the trial court binding or nonbinding

recommendations on sentences, including a recommended “cap” on sentencing

and/or a recommendation for deferred adjudication community supervision. Id.

The court observed that both charge-bargaining and sentence-bargaining either

directly involve punishment, or at least affect punishment, and noted, for

example, that an agreement to dismiss a pending charge or not to bring an

available charge effectively puts a cap on punishment at the maximum sentence

for the charge not dismissed. Id. The court set out a hypothetical example of

charge-bargaining that is remarkably similar to the facts of the instant appeal:

Charge-bargains can affect punishment in other ways. For

example, two offenses may be within the same range of

punishment, but if one of them is described in Code of Criminal

Procedure article 42.12, section 3g, and the other is not, the

effects of sentences that are identical on their faces can be quite

different. Sentences that are described in that section cannot be

suspended by the trial court without the recommendation of a jury,

and offenders convicted of them become eligible for parole only

when their actual calendar time served in confinement equals the

lesser of one-half of the sentence or 30 years, while other

offenders are eligible when their actual calendar time served plus

good conduct time equals the lesser of one-fourth of the sentence

or 15 years.

Id. at 813–14 (footnotes omitted). The court concluded that such a charge-
2... Article 44.02 provides as follows:

A defendant in any criminal action has the right of appeal under the

rules hereinafter prescribed, provided, however, before the

defendant who has been convicted upon either his plea of guilty or

plea of nolo contendere before the court and the court, upon the

election of the defendant, assesses punishment and the punishment

does not exceed the punishment recommended by the prosecutor

and agreed to by the defendant and his attorney may prosecute his

appeal, he must have permission of the trial court, except on those

matters which have been raised by written motion filed prior to

trial.

TEX. CODE CRIM. PROC. ANN. art. 44.02 (Vernon Supp. 2007).

3... Rule 25.2(a)(2) provides as follows:

In a plea bargain case–that is, a case in which a defendant’s plea

was guilty or nolo contendere and the punishment did not exceed

the punishment recommended by the prosecutor and agreed to by

the defendant–a defendant may appeal only:

(A) those matters that were raised by written motion filed and ruled

on before trial, or

(B) after getting the trial court’s permission to appeal.

TEX. R. APP. P. 25.2(a)(2).

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bargain is a plea bargain as defined by article 44.02 of the code of criminal

procedure and rule of appellate procedure 25.2(a)(2). 2 Shankle, 119 S.W.3d 3
4... Although the court of criminal appeals observed that it “embodied the

guilty-pleading defendant’s right to appeal” under article 44.02 in rule

25.2(a)(2), Shankle, 119 S.W.3d at 812, we note that the definition of “plea

bargain” in rule 25.2(a)(2) is not the same as the definition in article 44.02.

Article 44.02 limits “plea bargain” to situations where “the court, upon the

election of the defendant, assesses punishment and the punishment does not

exceed the punishment recommended by the prosecutor.” TEX. CODE CRIM.

PROC. ANN. art. 44.02 (emphasis added). Rule 25.2(a)(2)’s definition of plea

bargain—“a case in which a defendant’s plea was guilty or nolo contendere and

the punishment did not exceed the punishment recommended by the prosecutor

and agreed to by the defendant”—does not limit the term to situations where

the court assesses punishment. TEX. R. APP. P. 25.2(a)(2) (emphasis added).

Thus, rule 25.2(a)(2)’s limitation on a plea-bargaining defendant’s right to

appeal encompasses situations where, as here, a jury assesses punishment,

while article 44.02 limits a defendant’s right to appeal only when the court

assesses punishment.

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at 814. Because the punishment assessed in Shankle did not exceed the 4

maximum punishment for the nondismissed charge to which the defendant

pleaded guilty under his charge-bargain agreement with the State, the court

held that he had no right to appeal under article 44.02 and rule 25.2(a)(2) and

dismissed the appeal for lack of jurisdiction. Shankle, 119 S.W.3d at 814.

For the same reasons, Appellant has no right to appeal in this case. The

plea agreement was stated on the record by the prosecutor: The State would

not prosecute Appellant in his other pending cases if Appellant pleaded guilty

to the possession with intent to deliver methamphetamine charge. Neither

Appellant nor his counsel objected to the prosecutor’s recitation of the

agreement, and counsel’s subsequent examination of Appellant and Appellant’s
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answers to his questions are wholly consistent with the agreement. The jury

assessed punishment that was less than the maximum for the charge to which

Appellant pleaded guilty. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.112(a),

(d) (Vernon 2003); TEX. PENAL CODE ANN. § 12.32 (Vernon 2007) (together

providing that possession with intent to deliver more than four but less than

200 grams of methamphetamine is a first-degree felony punishable by a

sentence of imprisonment of up to ninety-nine years or life and a $10,000 fine).

Because Appellant pleaded guilty and “the punishment did not exceed the

punishment recommended by the prosecutor and agreed to by the defendant,”

we hold that Appellant has no right of appeal under rule 25.2(a)(2). See TEX.

R. APP. P. 25.2(a)(2); Shankle, 119 S.W.3d at 814.

Because Appellant has no right of appeal, we have no jurisdiction over his

complaint that the trial court failed to properly admonish him. See Shankle,

119 S.W.3d at 814. We therefore grant the State’s plea to the jurisdiction and

dismiss the appeal. See id.; TEX. R. APP. P. 42.3(a).

PER CURIAM

PANEL: GARDNER, LIVINGSTON, and DAUPHINOT, JJ.

DO NOT PUBLISH

TEX. R. APP. P. 47.2(b)

DELIVERED: August 7, 2008