In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

No. 02-20-00020-CR

___________________________

On Appeal from Criminal 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

JENNIFER SUE WITTEVEEN, Appellant

V.

THE STATE OF TEXAS
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MEMORANDUM OPINION

Appellant Jennifer Sue Witteveen attempts to appeal from her conviction of 

theft of property of $150,000 or more but 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 restitution in the amount of $295,667.90.

1 See Tex. 

Penal Code Ann. § 31.03(a), (e)(6)(A), (f)(3)(B). 

The trial court’s judgment states that this was an “OPEN PLEA WITH PSI; 

WAIVE COUNT 2.” Count 2 of Appellant’s indictment alleged misapplication of 

fiduciary property in an amount of $30,000 to $150,000, a third-degree felony.2 The 

written plea admonishments that Appellant signed reflect that her plea was 

“knowingly, freely, and voluntarily entered,” that her counsel provided her “fully 

effective and competent representation,” and that she gave up and waived “any and all 

rights of appeal in this case.”

1The punishment range for theft of property of a value of $150,000 or more 

but less than $300,000 is usually that of a second-degree felony, see Tex. Penal Code 

Ann. § 31.03(e)(6)(A), but the punishment range here was increased to that of a firstdegree 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 punishment range 

for a second-degree felony is not less than 2 years and not more than 20 years and up 

to a $10,000 fine. See id. § 12.33. The punishment range for a first-degree felony is 

not less than 5 years and not more than 99 years or life and up to a $10,000 fine. See 

id. § 12.32.

2The punishment range for a third-degree felony is not less than 2 years and 

not more than 10 years and up to a $10,000 fine. See Tex. Penal Code Ann. § 12.34.
3

Appellant subsequently filed a motion for new trial in which she acknowledged

that she had waived her right to appeal but argued that she had received ineffective 

assistance of counsel when she originally pleaded guilty on November 1 to a lesser 

charge (theft of property of $30,000 or more but less than $150,000) and then pleaded 

guilty on November 11 to the greater charge. The trial court denied the motion after 

an evidentiary hearing.

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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 parties that the certification appeared to be defective because 

Appellant had signed written waivers of her right to appeal and because there 

appeared to have been a charge (not plea) bargain, the trial court filed an amended 

certification. The amended certification stated that this “is a plea-bargain case, and 

the defendant has NO right of appeal.” The trial court subsequently filed another 

3At the hearing, Appellant’s trial counsel agreed that he had not researched or 

advised Appellant on the effect of the Double Jeopardy Clause but stated that 

Appellant “had always known that . . . the proper charge which she was supposed to 

be going forth on was the first degree,” that they had had many discussions about the 

first-degree offense, that Appellant did not contest or dispute how much money she 

had taken, which was more than $150,000, and that Appellant’s ultimate desire had 

been for community supervision. Appellant agreed that she had understood prior to

November 1 that her theft charge had been for property valued at between $150,000 

and $300,000 but said that between November 5 and 11, her counsel did not discuss 

double jeopardy with her and that on November 11, she had not believed that she had 

any option other than to plead guilty. Appellant asserted that if she had known about 

the double-jeopardy bar, she would have made a materially different decision. 
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amended certification, stating that “the defendant has waived in writing the right of 

any and all appeal.”

We notified Appellant that we questioned our jurisdiction over her attempted 

appeal. See Tex. R. App. P. 44.3. Appellant responded that the record is devoid of 

any evidence that she waived her right to appeal in exchange for anything. However, 

the record reflects that Appellant entered a charge bargain. Our place is to decide 

whether there was a charge bargain, not whether it was a good bargain. See Mayfield v. 

State, No. 02-19-00343-CR, 2019 WL 6335421, at *2 (Tex. App.—Fort Worth Nov. 

27, 2019, no pet.) (mem. op., not designated for publication). Waiver of the second

count resulted in Appellant’s facing only one conviction and one sentence, whereas 

before the plea bargain, she faced two convictions and two sentences. See Kennedy v. 

State, 297 S.W.3d 338, 342 (Tex. Crim. App. 2009) (observing that charge-bargain 

agreement was entered into when appellant agreed to plead guilty to aggravated 

assault on a peace officer with a deadly weapon in exchange for dismissal of firstdegree attempted capital murder and third-degree deadly conduct charges because 

“[u]nder the plea-bargain agreement, [the appellant] was subject to a single 

punishment for a first degree felony offense”).

Because an appeal must be dismissed if the trial court’s certification does not 

show that the defendant has a right of appeal, we dismiss the appeal. See Tex. R. App. 

P. 25.2(d), 43.2(f); Jones v. State, 488 S.W.3d 801, 807 (Tex. Crim. App. 2016).
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/s/ Bonnie Sudderth

Bonnie Sudderth

Chief Justice

Do Not Publish

Tex. R. App. P. 47.2(b)

Delivered: October 29, 2020