Larry Wheeler v. the State of Texas

DISMISS and Opinion Filed August 12, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-24-00785-CR
No. 05-24-00786-CR

LARRY WHEELER, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 1
Dallas County, Texas
Trial Court Cause Nos. F20-00243, F20-00277

MEMORANDUM OPINION
Before Justices Partida-Kipness, Pedersen, III, and Carlyle
Opinion by Justice Pedersen, III
Larry Wheeler appeals his convictions for sexual assault and aggravated

sexual assault. We conclude we lack jurisdiction over the appeals, and we dismiss

them for want of jurisdiction.

CAUSE NO. F20-00243

In cause number F20-00243, appellant was indicted for sexual assault with

two prior convictions for punishment enhancement. Appellant was found guilty by

a jury. Appellant elected to have the trial court assess punishment. Before the

punishment hearing began, the State and appellant reached an agreement as to
punishment whereby appellant would be sentenced to twenty-five years’

imprisonment and he would waive his right of appeal. The trial court questioned

appellant as follows:

The Court: All right. The jury having found Mr. Wheeler guilty of the
offense of sexual assault in Cause Number F20-00243, Mr. Wheeler
and his attorney, Mr. Bill Cox, gave to the Court paperwork prior to the
trial in intention to come to the Court for sentencing. My understanding
today is that while we were on break, Mr. Cox and Mr. Wheeler came
to an agreement with the State of Texas for a particular number of years.
In addition, for that deal, they are giving up the right to appeal.

Mr. Cox [appellant’s counsel], is that correct?

Mr. Cox: Correct, Your Honor.

The Court: All right. State, is that correct?

Ms. Diaz [prosecutor]: Yes, Your Honor; correct.

The Court: . . . Mr. Wheeler, you understand that it is your right to have
me sentence you . . . should you not agree with the plea deal that you
and your lawyer have agreed to, and that will preserve your right to
appeal. Do you understand that?

The Defendant: Yes, ma’am.

The Court: Understanding that, you would like to give up that right of
appeal and take the 25-year sentence that you have agreed to with the
State today?

The Defendant: Yes, ma’am.

The trial court found the punishment-enhancement allegations true and

sentenced appellant to twenty-five years’ imprisonment in accordance with the

parties’ agreement. The trial court’s certification of defendant’s right of appeal

states, “the defendant has waived the right of appeal.”

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Although a defendant has a statutory right to appeal his conviction, a

defendant may waive his right to appeal in all but capital cases. Carson v. State, 559

S.W.3d 489, 492–93 (Tex. Crim. App. 2018); see TEX. CODE CRIM. PROC. ANN. art.

1.14(a) (defendant in non-capital case “may waive any right secured him by law”).

A valid waiver of appeal—one made voluntarily, knowingly, and intelligently—

prevents a defendant from appealing without the trial court’s permission. See

Carson, 559 S.W.3d at 492–93; Ex parte Broadway, 301 S.W.3d 694, 697–99 (Tex.

Crim. App. 2009). When a defendant waives his right to appeal in exchange for

consideration from the State, a defendant’s waiver is made knowingly, intelligently,

and voluntarily, and he is prevented from appealing any matters unless the trial court

first grants permission. See Ex parte Broadway, 301 S.W.3d at 697–99; Bruner v.

State, No. 01-18-00635-CR, 2018 WL 4131088, at *1 (Tex. App.—Houston [1st

Dist.] Aug. 30, 2018, no pet.) (mem. op., not designated for publication). An appeal

must be dismissed if a certification showing that a defendant has the right of appeal

has not been made part of the appellate record. See TEX. R. APP. P. 25.2(d); Dears v.

State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005).

Here, the record demonstrates that appellant voluntarily agreed to waive his

right to appeal in exchange for a twenty-five-year sentence recommendation from

the State. The reporter’s record supports the trial court’s certification that appellant

waived his right to appeal. See TEX. R. APP. P. 25.2(a)(2), (d); Dears, 154 S.W.3d

at 615. Because appellant has no right of appeal, we must dismiss this appeal for

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lack of jurisdiction. See Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App.

2006) (“A court of appeals, while having jurisdiction to ascertain whether an

appellant . . . is permitted to appeal by Rule 25.2(a), must dismiss a prohibited appeal

without further action, regardless of the basis for the appeal.”).

CAUSE NO. F20-00277

In cause number F20-00277, appellant was indicted for aggravated sexual

assault with two punishment-enhancement paragraphs. After appellant was found

guilty in F20-00243, appellant and the State reached a plea bargain where appellant

would plead guilty to aggravated sexual assault and the State would abandon the

punishment-enhancement paragraphs and recommend a punishment of ten years’

imprisonment. The agreement admonished appellant that “[i]f the punishment

assessed does not exceed the agreement between you and the prosecutor, the Court

must give its permission to you before you may appeal on any matter in this case

except for those matters raised by written motions prior to trial.” The agreement

also provided, appellant “herein states that he/she: . . . Waives the right to appeal to

the Court of Appeals.” The trial court accepted the agreement and sentenced

appellant to ten years’ imprisonment. The trial court, appellant, and his counsel

signed the Trial Court’s Certification of Defendant’s Right of Appeal, which states,

“I certify that this criminal case is a plea-bargain case, and the defendant has NO

right of appeal; the defendant has waived the right of appeal.”

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A defendant in a criminal case has the right of appeal as set out in the Code

of Criminal Procedure and the Rules of Appellate Procedure. See TEX. CODE CRIM.

PROC. ANN. art. 44.02. TEX. R. APP. P. 25.2(a) Rule of Appellate Procedure 25.2

provides that in “a plea-bargain case—that is, a case in which a defendant’s plea was

guilty . . . and the punishment did not exceed the punishment recommended by the

prosecutor and agreed to by the defendant,” a defendant may appeal only “those

matters that were raised by written motion filed and ruled on before trial,” “after

getting the trial court’s permission to appeal,” or “where the specific appeal is

expressly authorized by statute.” TEX. R. APP. P. 25.2(a)(2). When an appellant

waives his right to appeal as part of his plea bargain agreement with the State, a

subsequent notice of appeal filed by him fails to “initiate the appellate process,”

Lundgren v. State, 434 S.W.3d 594, 599, 600 (Tex. Crim. App. 2014), and “no

inquiry into even possibly meritorious claims may be made,” Chavez v. State, 183

S.W.3d 675, 680 (Tex. Crim. App. 2006). When an appeal from a plea bargain is

not authorized by Rule 25.2, “[a] court of appeals, while having jurisdiction to

ascertain whether an appellant who plea-bargained is permitted to appeal by Rule

25.2(a)(2), must dismiss a prohibited appeal without further action, regardless of the

basis for the appeal.” Chavez, 183 S.W.3d at 680.

In this case, the record shows appellant and the State agreed appellant would

plead guilty to aggravated sexual assault in exchange for a specific recommended

punishment, ten years’ imprisonment. The documents appellant signed admonished

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appellant he would have no right of appeal if the trial court followed the punishment

recommendation except for matters raised by written motion and ruled on before

trial or if the trial court granted appellant permission to appeal.

The clerk’s record does not contain any motion ruled on before trial, and the

certification of appellant’s right of appeal shows the trial court did not grant

appellant permission to appeal. Therefore, under Rule 25.2(a), appellant has no right

of appeal. See Chavez, 183 S.W.3d at 680.

Rule 25.2(d) also requires the court of appeals to dismiss the appeal if there is

no certification from the trial court showing the defendant has the right of appeal.

TEX. R. APP. P. 25.2(d). The certification affirmatively shows appellant did not have

the right to appeal, and the certification is supported by the record. Therefore, we

must dismiss the appeal. Id.; see Dears, 154 S.W.3d at 613.

CONCLUSION

We dismiss these appeals for want of jurisdiction.

/Bill Pedersen, III/
BILL PEDERSEN, III
Do Not Publish JUSTICE
TEX. R. APP. P. 47.2(b)

240785F.U05

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

LARRY WHEELER, Appellant On Appeal from the Criminal District
Court No. 1, Dallas County, Texas
No. 05-24-00785-CR V. Trial Court Cause No. F20-00243.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Pedersen, III. Justices Partida-
Kipness and Carlyle participating.

Based on the Court’s opinion of this date, the appeal is DISMISSED for
want of jurisdiction.

Judgment entered August 12, 2024

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

LARRY WHEELER, Appellant On Appeal from the Criminal District
Court No. 1, Dallas County, Texas
No. 05-24-00786-CR V. Trial Court Cause No. F20-00277.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Pedersen, III. Justices Partida-
Kipness and Carlyle participating.

Based on the Court’s opinion of this date, the appeal is DISMISSED for
want of jurisdiction.

Judgment entered August 12, 2024

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