Billy Roy High, Jr. v. THE STATE OF TEXAS

Dismissed and Opinion Filed May 2, 2024

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-01203-CR

BILLY ROY HIGH, JR., Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No. 4
Collin County, Texas
Trial Court Cause No. 004-83825-2020

MEMORANDUM OPINION
Before Justices Smith, Miskel, and Breedlove
Opinion by Justice Breedlove
Appellant appeals his conviction for driving while intoxicated. Appellant

pleaded nolo contendere, and pursuant to a plea bargain, the trial court deferred

adjudication of appellant’s guilt, placed him on community supervision for twelve

months, and imposed a fine of $200. One of the terms of the plea bargain was that

appellant “waives right to appeal.” We conclude we lack jurisdiction over this

appeal because it is an appeal from a plea bargain, the trial court did not grant

permission to appeal, the record contains no pretrial motions ruled on before trial,
and no statute authorizes appeal of this case. Also, appellant waived the right to

appeal. Accordingly, we dismiss this appeal for want of jurisdiction.

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 or nolo contendere 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 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 v. State, 183 S.W.3d

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

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 (Tex. Crim. App.

2014), and “no inquiry into even possibly meritorious claims may be made,” Chavez,

183 S.W.3d at 680.

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In this case, appellant was charged by information (filed July 10, 2020) with

driving while intoxicated on October 21, 2019. On November 10, 2023, appellant

signed a waiver of his rights to jury trial, confrontation, and presentation of

witnesses. He also waived his rights to ten days to prepare for trial and ten days’

notice of any hearing.

The plea agreement, styled “Sentence Recommendation,” states appellant

agreed to plead “no contest” and the State would recommend deferred adjudication

for 12 months, a $200 fine plus court costs, and certain specific conditions of

community supervision. The agreement also provided appellant would receive 87

days jail-time credit. The agreement also stated that appellant “waives right to

appeal and the right to file a motion for new trial.” The agreement provided that the

State approved and consented to appellant’s waiver of a trial by jury and that the

State waived its right to trial by jury. The “Sentence Recommendation” was signed

by appellant, his attorney, and the assistant criminal district attorney.

During the plea hearing, the trial court asked appellant if he was asking the

trial court to follow the plea agreement, and appellant said, “Yes, Your Honor.” The

trial court told appellant, “In a moment, I’m going to ask you to plead guilty or not

guilty. You can plead no contest if you wish. If you plead guilty or no contest, there

will be no appeal of your plea.” Appellant stated that he understood. The trial court

then asked appellant, “As to the driving while intoxicated, how do you plead?”

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Appellant answered, “No contest, Your Honor.” The trial court stated the agreement

would be followed, and the court deferred adjudication of appellant’s guilt and

ordered community supervision in accordance with the agreement. The trial court’s

certification of defendant’s right of appeal 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.”

The record in this case shows appellant pleaded nolo contendere1 and the

punishment did not exceed the punishment recommended by the prosecutor and

agreed to by the defendant. The clerk’s record does not contain any motion ruled on

before trial; the certification of appellant’s right of appeal shows the trial court did

not grant appellant permission to appeal; and no statute expressly authorizes this

specific 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) 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

1
A plea of “no contest” is a plea of “nolo contendere,” and the terms are used interchangeably. See,
e.g., Jones v. State, 05-20-00476-CR, 2022 WL 17750551, at *3 (Tex. App.—Dallas Dec. 19, 2022, pet.
ref’d) (mem. op; not designated for publication).
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dismiss the appeal. Id.; see Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App.

2005).

We requested the parties to file briefs addressing the jurisdictional issue, and

appellant filed a brief.

Appellant asserts his appeal is authorized by articles 42A.110(a) and

42A.755(e) of the Texas Code of Criminal Procedure. Article 42A.110 is titled,

“Proceedings After Adjudication” and provides, “After an adjudication of guilt, all

proceedings including . . . defendant’s appeal, continue as if the adjudication of guilt

had not been deferred.” TEX. CODE CRIM. PROC. ANN. art. 42A.110(a). This statute

does not apply in this appeal because the record does not show appellant’s guilt has

been adjudicated.

Article 42A.755(e) provides, “The right of the defendant to appeal for a

review of the conviction and punishment, as provided by law, shall be accorded the

defendant at the time the defendant is placed on community supervision.” Id. art.

42A.755(e). “The law,” specifically article 44.02 of the Texas Code of Criminal

Procedure and Rule of Appellate Procedure 25.2(a)(2), however, provides that a

defendant who pleads guilty or nolo contendere in a plea-bargain case may appeal

only in certain situations, none of which exist in this case. Appellant has not shown

that this “specific appeal is expressly authorized by statute.” TEX. R. APP. P.

25.2(a)(2)(C).

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Appellant states he “is ‘unsure’ if he received a punishment that exceeded the

punishment recommended by” the State. The record shows the punishment received

was the same as that recommended in the plea agreement. In his argument under

this issue, appellant also asserts that he was denied the right to a full adversarial

hearing, denied “the right to meet any of the prosecutors,” the prosecutor did not file

the approval of appellant’s waiver of a jury trial before appellant entered his plea,

and other assertions; however, none of these arguments show the punishment

recommended by the State as part of the plea bargain differed from the punishment

appellant received.

Appellant also argues he did not waive his right of appeal. The plea

agreement, which is a filled-in form document, states:

(__X__) Defendant waives right to appeal and the right to file a motion
for new trial.
This provision shows appellant waived the right to appeal as part of the plea

agreement.

Appellant also argues he lacked effective assistance of counsel, his waiver of

his right to a jury trial was coerced and ineffective, the indictment was outside the

statute of limitations, and the jury waiver was not approved and consented to by the

State. The record does not show that appellant received the trial court’s permission

to appeal any of these issues; accordingly, we cannot consider them. See TEX. R.

APP. P. 25.2(a)(2)(B); Adams v. State, 678 S.W.3d 301, 305 (Tex. App.—San

Antonio 2023, no pet.) (“The law is clear that, in plea-bargained cases, we have no
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authority to address issues that are not authorized by Rule 25.2(a)(2).” (quoting

Estrada v. State, 149 S.W.3d 280, 283 (Tex. App.—Houston [1st Dist.] 2004, pet.

ref'd))).

We conclude we lack jurisdiction over this appeal. We dismiss this appeal for

want of jurisdiction.

/Maricela Breedlove/
231203f.u05 MARICELA BREEDLOVE
Do Not Publish JUSTICE
TEX. R. APP. P. 47.2(b)

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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

BILLY ROY HIGH, JR., Appellant On Appeal from the County Court at
Law No. 4, Collin County, Texas
No. 05-23-01203-CR V. Trial Court Cause No. 004-83825-
2020.
THE STATE OF TEXAS, Appellee Opinion delivered by Justice
Breedlove. Justices Smith and Miskel
participating.

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

Judgment entered this 2nd day of May, 2024.

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