NUMBER 13-17-00463-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ALEJANDRO GUERRA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 332nd District Court

of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Benavides and Longoria

Memorandum Opinion by Justice Benavides

Appellant Alejandro Guerra attempts to appeal his conviction for attempt to commit 

sexual performance of a child under fourteen years of age, a second-degree felony. See 

TEX. PENAL CODE ANN. § 43.25(C) (West, Westlaw through 2017 1st C.S.). Pursuant to a 

plea bargain for the lesser included offense Guerra was convicted for, the trial court has 
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certified that “the defendant has waived the right of appeal.” See TEX. R. APP. P.

25.2(a)(2). 

Guerra went to trial on the charged offense of sexual performance of a child under 

fourteen years of age, a first-degree felony. See TEX. PENAL CODE ANN. § 43.25(c). During 

jury deliberations, Guerra alleges that the trial court met with defense counsel and the 

State in chambers and told them the jury was split in favor of guilt. Guerra then requested 

his counsel approach the State about a plea bargain agreement, to which the State 

agreed. Guerra pleaded guilty to the lesser offense of attempt to commit sexual 

performance by a child, was admonished by the trial court, agreed his plea was given 

freely and voluntarily, and was sentenced to five years deferred adjudication probation. 

See id. As part of the plea bargain agreement, Guerra waived his right to appeal. 

Following his plea bargain and sentencing, Guerra alleges his defense counsel was told 

the jury was split in favor of not guilty. Guerra filed a motion for new trial stating that he 

was forced to plead guilty and his plea was involuntary. The trial court held a hearing on 

Guerra’s motion for new trial, listening to argument from counsel, and denied the motion.1 

The trial court filed a certification on Guerra’s right to appeal and stated he had waived his 

right due to the plea bargain. However, appellate counsel was appointed and this appeal 

followed. 

 

1

 Although Guerra and his trial counsel executed affidavits that were attached to the amended 

motion for new trial, they were not submitted as evidence nor was any additional evidence supporting the 

allegations submitted during the motion for new trial hearing. All that was presented at that hearing was the 

arguments of counsel. 
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On September 22, 2017, this Court notified Guerra’s appellate counsel of the trial 

court’s certification and ordered counsel to: (1) review the record; (2) determine whether 

appellant has a right to appeal; and (3) forward to this Court, by letter, counsel’s findings 

as to whether Guerra has a right to appeal, or, alternatively, advise this Court as to the 

existence of any amended certification. Additionally, the trial court issued findings of fact 

and conclusions of law regarding the procedural history of Guerra’s case and also made 

a finding that it does not believe Guerra has a right to appeal. 

After abatement, Guerra’s counsel filed a motion in support of Guerra’s right to 

appeal. Guerra argues that: (1) his plea was involuntary based on misrepresentations 

from the trial judge; and (2) he did not knowingly waive his right to appeal based on 

improper admonishments by the trial court. The State has filed a response to Guerra’s 

motion in which it contends, inter alia, that by freely and voluntarily pleading guilty to the 

lesser offense, Guerra has waived his right to appeal due to the agreement. 

We conclude that Guerra has not established (1) that the certification currently on 

file with this Court is incorrect, or (2) that Guerra otherwise has a right to appeal. We 

agree that Guerra’s waiver of the right to appeal did not waive Guerra’s right to file a motion 

for new trial, which occurred and was denied by the trial court. See Lundgren v. State, 

434 S.W.3d 594, 599 (Tex. Crim. App. 2014). As the court of criminal appeals explained:

The authority for a defendant to appeal can be found in Article 44.02 of the 

Texas Code of Criminal Procedure and Rule 25.2(a)(2) of the Texas Rules 

of Appellate Procedure. TEX. CODE CRIM. PROC. art. 44.02; TEX. R. APP. P.

25.2(a)(2). Motions for new trial are addressed in Rule 21 of the Texas Rules 

of Appellate Procedure. TEX. R. APP. P. 21. And while it is true that appeals 

and motions for new trial are both organizationally located in the section 

“Appeals from Trial Court Judgments and Orders” of the Texas Rules of 
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Appellate Procedure, the topics are addressed in separate rules and are 

handled differently. 

For example, in some cases, Rule 21.2 specifically contemplates that a 

motion for new trial is a prerequisite to presenting an issue on appeal. Id. 

21.2 (“A motion for new trial is a prerequisite to presenting a point of error 

on appeal only when necessary to adduce facts in the record.”). In addition, 

although motions for new trial and notices of appeals are both filed at the 

trial court level, only a trial court can grant or overrule a motion for new trial 

(unless the motion is overruled by operation of law) and only an appellate 

court can render judgment on appeals. See id. 21.1 (defining new trial as 

the “rehearing of a criminal action after the trial court has. . . set aside a 

finding or verdict of guilt.”), 43.2 (delineating the types of judgments a court 

of appeals may enter when considering an appeal from a trial court 

judgment). Moreover, when a motion for new trial is filed, the trial court has 

the opportunity to reconsider the proceedings and to correct any errors it 

may agree occurred in the defendant’s trial by setting aside the defendant’s 

finding or verdict of guilt or sentencing. See id. 21.1, 21.9(a). In contrast, 

an appeal is an opportunity for the defendant to argue to a different tribunal 

that his conviction was flawed despite the trial judge’s or jury’s conclusion to 

the contrary. See BLACK’S LAW DICTIONARY 118 (10th ed. 2014) (defining 

“appeal” as “[t]o seek review (from a lower court’s decision) by a higher court. 

. . .”). 

In sum, although the word “appeal” could be used colloquially to refer to a 

motion for new trial or a notice of appeal in the sense that both procedural 

mechanisms serve a review function, we hold that motions for new trial and 

appeals are sufficiently different that an appellate waiver will not waive a 

defendant’s right to file a motion for new trial.

Id. at 599–600 (footnotes omitted). However, while Guerra could file a motion for new trial 

to complain about his plea to the trial court, he cannot then appeal the trial court’s 

determination to this Court because the decision would be subject to Guerra’s waiver of 

appeal. See Woods v. State, 108 S.W.3d 314, 316 (Tex. Crim. App. 2003) (stating that 

an appellate court may not review a claim of an involuntary plea arising from a plea bargain 

where the claims do not conform to the requirements of rule 25.2); see also Whitfield v. 

State, 111 S.W.3d 786, 789–90 (Tex. App.—Eastland 2003, pet. ref’d). 
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The Texas Rules of Appellate Procedure provide that an appeal must be dismissed 

if the trial court’s certification does not show that the defendant has the right to appeal. 

TEX. R. APP. P. 25.2(d); see TEX. R. APP. P. 37.1, 44.3, 44.4. Accordingly, we overrule 

Guerra’s issue, and we DISMISS this appeal for want of jurisdiction. 

GINA M. BENAVIDES,

Justice

Do not publish.

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

Delivered and filed the

19th day of April, 2018.