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

at Fort Worth

___________________________ No. 02

- 20

- 00020

- CR

____________

_______________

On Appeal from Crimina l District Court No. 1

Tarrant County, Texas Trial Court No. 1593748D
Before Sudderth, C.J.; Gabriel and Kerr, JJ. Memorandum Opinion by Chief Justice Sudderth 

### J ENNIFER 

### S UE 

### W IT TEVEEN 

### , App ellant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION Appell ant Jennifer Sue Witte veen attempts to appeal f rom her convic tion of
theft o f property of $150,000 or more b ut less than $ 300,000 from a nonprofit organization , a first

- degree felony , for which she was sentenced to 8 years ’
confinement and to payment of res titution in the amount of $295,6 67.90

. 1 Se e T ex. Penal C ode Ann. § 31.03( a), (e) (6)(A), (f)(3) (B).
The trial court ’ s ju dgment states that this was an “ OPEN PLEA WITH P SI;
WAIVE COUNT 2. ” Co unt 2 of Appellant ’ s indictment alleged misapplication of fiduciary property in an amount of $30,000 to $150,000, a third

- degree f elony. 2 The
writte n plea admonishments that Ap pellant signed reflect that her plea was

“ knowingly, freely, and voluntarily entered , ” that her counsel provided her “ fully
effective and com petent repres entation, ” and that she gave up and waived “ any and all rights of appeal in this case. ”

1 The punishment range for theft of prope rty of a value of $150,00 0 or more but less than $300,000 is usually that of a second

- degree felony , see T ex. Penal Code A nn. § 31.03(e)(6)(A) , b ut th e punishm ent range here was increased t o that of a f irst

degree felony because the property ’s owner was a nonprofit organization at the time Appellant appropriated the property

. See id. § 31 .03(f)(3)( B). The pu n ishment ra nge for a second

- d egree felony is not less th an 2 years and not more tha n 20 years and up to a $10,00 0 fine. See id. § 12.33 . The punishment range for a first

- degree felon y is not le ss th an 5 years and not more than 99 years or life and up to a $10,000 f ine. See id. § 12.32.

2 The punishment range for a third

- de gree felony i s not less than 2 years an d not more than 10 years and up to a $10,000 fine. See Tex. P enal Code Ann. § 12.34.3

Appe llant subsequently file d a motion for new trial in which sh e acknowledg ed
that she had waived her right to appeal but argued that she had received ineffective
assistance of c ounsel when she originally pleaded guilty o n November 1 to a lesser charge (theft of property of $30,000 or more but less than $150,000) and then plead ed guilty on November 11 to the greater charge

. The trial court denied the motion af ter

a n evid entiary hearing

. 3
The trial court ’ s initial certification of Appellant ’ s right of appeal stated that the

case was not a plea

- bargain case and that Appellant had the right of appeal

. But after
this court notified the p arties that the certification appeared to be defective because Appellant ha d signed written waivers of her right to appeal and because there appeared t o have been a charge (not plea) bargain, the trial court file d an am ended
certification. The amend ed certific ation s tate d that this “ is a pl ea

- bargain case, and
the defendan t has NO right of appeal. ” The trial court subsequently filed an other

3 At the hearing , A ppellant ’ s trial counsel agreed that he had not resear ched or advised Appellant on the effect of the D ouble J eopardy Clause bu t s tated tha t Appellant “ had always known that

. . . the proper charge which she was supposed to be going for th on was the first degre e, ” that they had had many discussions a bout the f irst

- degree offense, that Appellant did not contest or dispute how much m on ey she ha d taken , which was more than $150,000, and th at Appellant ’ s ultimate desire had been for community s upervision

. Appellant agreed that she had unders tood prior t o November 1 that her theft charge had been for property valued at bet ween $150,000 and $300,000 but said that bet w ee n Novembe r 5 and 11, her counsel did not discuss d ouble j eopar d y with her and that on November 11, she had not believe d that she had any op t ion other than to plead guilty

. Appellant asserted that if she had k nown about the d ouble

- j eopa rdy bar, she would have made a mate ri ally diff erent decision

.4

amended cer tification , stating that “ the defendant has waived in wr iting the right of any and all appeal

. ” We notified Appellant that we questioned our jurisdiction over h er attem pted appeal. See Tex. R. App. P. 4 4.3. Appellan t responded that the record is devoid o f any evidence that she waived her right to appeal in e x change for anything. However, the record reflects that Appellant entered a charge bargain. O ur place is to dec ide whether there was a charge ba rgain, n ot whether it was a good bargain. See Mayfield v. State , No. 02

- 19

- 00343

- CR, 2019 WL 6335421, at *2 (T ex. App.

— Fort Worth Nov. 27, 2019, no pet.) (me m. op., n ot designated for publication). W aiver of the second

co unt resulted in Appellant ’ s facing only o ne convicti on and one sentence , whereas
before the plea bargain, she faced two convictions and two se nt ences. See Kennedy v.
State , 2 97 S.W.3d 338, 342 (Tex. Crim. App. 2 009) ( observing that charge

- bargain
agreemen t was entered into when appel lant agreed to plead gu ilty to aggravated assault on a peac e officer with a deadly weapon in exchange for dismissal of firs t

degree attempted capit al murder and third

- degree deadly conduct charges because “[ u] nder the plea

- bargain agreem ent, [ the appellant] wa s s u bject to a singl e punishmen t for a first degree fel ony offens e ” )

. Because a n appeal must be dismissed if the trial c ourt ’ s certification does not
show that the defendant has a right of appeal, w e dismiss the appeal

. See Tex. R. A pp.
P. 25.2(d), 43.2(f) ; Jones v. State , 488 S.W.3d 801, 807 (Tex. Crim. App . 2016).5 /s/ Bonnie Sudderth Bonnie Sudd erth Chief Just ice
Do Not Publish Tex. R. Ap p. P. 47.2(b)
Delivered : October 29, 2020