Jovon Rashad Brooks v. the State of Texas

DISMISS and Opinion Filed August 28, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-24-00781-CR

JOVON RASHAD BROOKS, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 15th Judicial District Court
Grayson County, Texas
Trial Court Cause No. 077295

MEMORANDUM OPINION
Before Justices Reichek, Goldstein, and Garcia
Opinion by Justice Goldstein
Jovon Rashad Brooks appeals his convictions for theft and unauthorized use

of a motor vehicle. We dismiss this appeal for want of jurisdiction.

Appellant was charged in count 1 with theft of property, a motor vehicle, with

a value of $2,500 or more but less than $30,000, and in count 2 with unauthorized

use of a motor vehicle. Both offenses are state jail felonies. See TEX. PENAL CODE

ANN. § 31.03(e)(4)(a); id. § 31.07. No punishment-enhancement paragraphs were

alleged in the indictment. Subsequently, appellant agreed to plead guilty to the
charged offenses, and the State agreed not to allege punishment-enhancement

paragraphs against appellant based on appellant’s convictions in other states.

The prosecutor explained at the plea hearing:

He is pleading on both counts, and there is no enhancement allegation
alleged in the Indictment. But after discussion with counsel and review
of the Defendant’s criminal history out of state, it is the State’s position
that it believes that there may be an enhancement possible where the
Defendant could look at two to 20 years on this charge. . . . And in
keeping with this plea agreement, the State is foregoing and forfeiting
any right to later enhance the Defendant.

The trial court admonished appellant on the range of punishment for state jail

felonies and then told appellant, “But you understand that is a plea agreement

because the State has agreed not to file the enhancement.” Appellant answered,

“Yes, sir.” Appellant also testified as follows:

Q. And you do understand that we—because they’ve agreed to not
enhance, that’s an agreement between us and the State. Then whatever
he does, you can’t—you can’t appeal that?

A. Uh-huh.

Q. You do understand that, correct?

A. Yes, sir.

The trial court then told appellant:

[I]f myself or the Visiting Judge goes along with the agreement, you’re
waiving your right to appeal anything. Do you understand that?

THE DEFENDANT: Yes, sir.

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The trial court accepted the plea bargain and found appellant guilty. At a

subsequent hearing, the trial court assessed appellant’s punishment at “20 months

state jail.”

The plea documents signed by appellant included a “Waiver of Right to

Appeal” in which appellant stated, “I do not intend . . . to appeal from this

conviction.”

The trial court’s certification of defendant’s right of appeal states the court

“certif[ies] this criminal case is a plea-bargain case and the defendant has no right

of appeal.”

We requested appellant and the State to file letter briefs addressing this

Court’s jurisdiction, but neither has filed a brief.

A criminal defendant cannot appeal from a plea bargain except in specific,

limited circumstances:

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 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. The Texas Rules of Appellate Procedure

set out further limitations:

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
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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,

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

(C) where the specific appeal is expressly authorized by statute.

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

Plea bargains include agreements to plead guilty in exchange for the State not

pursuing enhancement paragraphs. See Gordon v. State, No. 05-19-00658-CR, 2020

WL 3071705, at *3 (Tex. App.—Dallas June 10, 2020, pet. ref’d) (mem op.; not

designated for publication). We conclude the State’s agreement not to bring

punishment-enhancement allegations in exchange for appellant pleading guilty

constitutes such a plea bargain. None of the three grounds for jurisdiction listed in

Rule 25.2(a)(2) apply in this case.

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

675, 680 (Tex. Crim. App. 2006).

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 in this case affirmatively shows appellant

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did not have the right to appeal, and the certification is supported by the record.

Therefore, we must dismiss the appeal. Id.; Dears v. State, 154 S.W.3d 610, 613

(Tex. Crim. App. 2005).

CONCLUSION

We dismiss this appeal for want of jurisdiction.

/Bonnie Lee Goldstein/
BONNIE LEE GOLDSTEIN
JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)

240781F.U05

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

JOVON RASHAD BROOKS, On Appeal from the 15th Judicial
Appellant District Court, Grayson County,
Texas
No. 05-24-00781-CR V. Trial Court Cause No. 077295.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Goldstein. Justices Reichek and
Garcia participating.

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

Judgment entered August 28, 2024

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