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Date: 01-11-2018

Case Style:

Jesse Adrian Martinez v. The State of Texas

Case Number: 08-17-00253-CR

Judge: Opinion Per Curiam Chief Justice McClure Justice Rodriguez Justice Palafox

Court: COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

Plaintiff's Attorney: Hon. Jaime E. Esparza

Defendant's Attorney: Ruben Morales

Description: Martinez was charged by indictment with capital murder. On November 7, 2017, Martinez
waived his right to a jury trial and entered a negotiated guilty plea to the lesser-included offense
of murder. The plea papers and the record of the guilty plea reflect that in exchange for Martinezís
plea of guilty, the State agreed to recommend a sentence of 30 yearsí imprisonment in TDCJID
with a deadly weapon finding and dismissal of Count II pursuant to Section 12.45 of the Texas



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Penal Code.1 The plea papers do not include a written waiver of the right to appeal.
The plea papers contain the standard admonishments regarding a defendantís limited right
to appeal in a plea-bargained case. In the section of the plea papers addressing the recommendation
for punishment, Martinez is advised that if the trial court does not follow the plea bargain, he will
be allowed to withdraw his guilty plea. The document goes on to explain to Martinez that he only
has a limited right to appeal if the trial court follows the plea bargain:
If, however, the punishment assessed by the Court in this case does not exceed the punishment recommended by the attorney representing the State of Texas and agreed to by you the Defendant and your attorney . . . the Court must give you permission before you may prosecute an appeal on any matter in the case except for those matters raised by written motion filed and heard prior to trial. [Emphasis added].
Martinez placed his signature on this page indicating he had read the document and understood its
contents.
The record also reflects that Martinez reviewed the trial courtís certification of defendantís
right to appeal before the guilty plea. Martinez signed the certification acknowledging that he had
received a copy of the certification and had been informed of his right to appeal. The certification
sets forth Martinezís right to appeal as follows:
A defendant in a criminal case has the right of appeal under these rules. The trial court shall enter a certification of the defendantís right to appeal in every case in which it enters a judgment of guilt or other appealable order. In a plea-bargain case--that is, a case in which the defendantís 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: (A) those matters that were raised by written motion filed and ruled on before trial, or (B) after getting the trial courtís permission to appeal. [Citation to TEX.R.APP.P. 25.2(a)(2) omitted][Emphasis in orig.].

1 Section 12.45(a) provides that a person may, with the consent of the attorney for the state, admit during the sentencing hearing his guilt of one or more unadjudicated offenses and request the court to take each into account in determining sentence for the offense or offenses of which he stands adjudged guilty. TEX.PENAL CODE ANN. ß 12.45(a)(West 2011). If a court lawfully takes into account an admitted offense, prosecution is barred for that offense. TEX.PENAL CODE ANN. ß 12.45(c).



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During the guilty plea, the trial court addressed Martinezís right to appeal:
[The Court]: If I do follow the plea bargain, and as set out in Stateís Exhibit 22 which sets out your rights to appeal in these matters, do you further understand that if the Court assesses a sentence in accordance with that plea bargain, that under Texas law you have no right to appeal?

[Martinez]: Yes, Your Honor.

[The Court]: And despite the fact that the Court has sentenced you in accordance with the plea bargain, do you further understand that if you decide to appeal, no matter for what reason, before you can appeal you must first obtain permission from the Court? And because the Court followed the plea bargain and sentenced you in accordance therewith, do you further understand that the Court has the right or the law allows the Court the discretion to deny you the permission to appeal? Do you understand that?

[Martinez]: Yes, Your Honor. [Emphasis added]. The trial court accepted Martinezís guilty plea and assessed his punishment in accordance with the
plea bargain. On the day of the guilty plea, November 7, 2017, the trial court signed the
certification stating that this is a plea bargain and Martinez has no right to appeal. Martinez filed
notice of appeal on December 8, 2017.
After reviewing the trial courtís certification, we sent a letter to the parties asking them to
address whether Martinez has a right to appeal. The trial court, on its own motion, conducted a
status hearing on the certification issue before either of the parties filed their response. At that
hearing, the trial court insisted that Martinez had waived his right to appeal as part of the plea
bargain. Martinezís counsel explained that he was only challenging the suppression ruling on
appeal, but the court stated that Martinez could not challenge that ruling without the courtís
permission and it refused to grant permission. Both the State and Martinez have filed their
responses to our inquiry.
DEFECTIVE CERTIFICATION OF THE RIGHT TO APPEAL
2 The trial courtís certification of the right to appeal was admitted during the guilty plea as Stateís Exhibit 2.



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Martinez asserts that the certification is defective because it is contrary to the record. The
State concedes that the plea papers do not include a written waiver of the right to appeal, but it
argues that Martinez verbally waived his right to appeal during the guilty plea hearing.
Rule 25.2(a)(2) requires a trial court to enter a certification of the defendantís right of
appeal each time it enters a judgment of guilt or other appealable order. TEX.R.APP.P. 25.2(a)(2).
The trial court is required to certify a defendantís right of appeal by selecting the appropriate box
on the certification form contained in the appendix to the Texas Rules of Appellate Procedure. See
TEX.R.APP.P., App. D; Hargesheimer v. State, 182 S.W.3d 906, 911 (Tex.Crim.App. 2006). The
form gives the trial judge five choices:
ē it is not a plea-bargain case and the defendant has the right of appeal;
ē it is a plea-bargain case but matters were raised by written motion filed and ruled
on before trial and not withdrawn or waived;
ē it is a plea bargain case but the trial court has given permission to appeal,
ē it is a plea-bargain case in which the defendant has no right of appeal; or
ē it is a case in which the defendant waived his right of appeal.
See TEX.R.APP.P. App. D; Hargesheimer 182 S.W.3d at 911. The trial court chose the fourth
option and certified that this is a plea bargain case and Martinez has no right of appeal.
The appeal must be dismissed if a certification that shows the defendant has the right of
appeal has not been made part of the record under these rules. TEX.R.APP.P. 25.2(d). If the
certification is defective, the clerk of the appellate court must notify the parties of the defect so
that it can be remedied, if possible. See TEX.R.APP.P. 37.1. A defective certification includes one
that is ďcorrect in form but which, when compared with the record before the court, proves to be
inaccurate.Ē Jones v. State, 488 S.W.3d 801, 804 (Tex.Crim.App. 2016), quoting Dears v. State,



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154 S.W.3d 610, 614 (Tex.Crim.App. 2005). A certification that is contrary to the record before
the appellate court is defective. Jones, 488 S.W.3d at 804-05.
In a plea-bargained case, the defendantís right to appeal is limited to (1) those matters
raised by written motion and ruled on before trial; or (2) after getting the trial courtís permission
to appeal. See TEX.CODE CRIM.PROC.ANN. art. 44.02 (West 2006);3 TEX.R.APP.P. 25.2(a)(2).4
Under Article 44.02 and Rule 25.2(a)(2), the defendantís entry of a negotiated guilty plea does not
extinguish his right to appeal the denial of a written motion to suppress that is ruled upon before
the guilty plea, and in such a case, the defendant is not required to secure the trial courtís
permission to appeal the suppression ruling. Because the trial court has denied permission to
appeal, Martinezís appeal is necessarily limited to those matters raised by written motion and ruled
on before the guilty plea hearing. Martinez has made it clear both in the trial court at the status
hearing and in his response to our inquiry about the certification that he intends to appeal the denial
of his motion to suppress heard and ruled on by the court prior to the guilty plea. The only
remaining question is whether Martinez waived his right to appeal the suppression ruling.
A criminal defendant in a non-capital case may waive any of the rights secured him by law,
including the right to appeal rulings on pretrial motions, if the waiver is made ďvoluntarily,
knowingly, and intelligently.Ē See TEX.CODE CRIM.PROC.ANN. art. 1.14(a)(West 2005); Marsh v.
3 Article 44.02 provides: ďA 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 plea of 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.Ē [Emphasis added]. TEX.CODE CRIM.PROC.ANN. art. 44.02 (West 2007).

4 Rule 25.2(a)(2) provides: ďA defendant in a criminal case has the right of appeal under Code of Criminal Procedure article 44.02 and these rules. The trial court shall enter a certification of the defendantís right of appeal each time it enters a judgment of guilt or other appealable order. 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: (A) those matters that were raised by written motion filed and ruled on before trial, or (B) after getting the trial courtís permission to appeal.Ē TEX.R.APP.P. 25.2(a)(2).



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State, 444 S.W.3d 654, 660 (Tex.Crim.App. 2014); Ex parte Broadway, 301 S.W.3d 694, 697
(Tex.Crim.App. 2009). A valid waiver of the right to appeal will prevent a defendant from
appealing without the consent of the trial court. Monreal v. State, 99 S.W.3d 615, 617
(Tex.Crim.App. 2003).
A plea bargain or plea agreement is a contract between the State and the defendant, and
they are given great latitude in crafting the terms of the agreement. See Ex parte De Leon, 400
S.W.3d 83, 89 (Tex.Crim.App. 2013); State v. Moore, 240 S.W.3d 248, 251 (Tex.Crim.App.
2007). Once the trial court accepts the plea agreement, it becomes binding on the State and the
defendant and both parties are entitled to the benefit of the bargain. See Ex parte De Leon, 400
S.W.3d at 89; State v. Moore, 240 S.W.3d at 251. We apply general contract-law principles to
determine the intended content of a plea agreement. Ex parte De Leon, 400 S.W.3d at 89. In
determining the terms of the plea agreement, an appellate court must look to both the written
agreement and the formal record, and we will imply a term only when necessary to effectuate the
intention of the parties. Id.
We have reviewed the records of the guilty plea and the status hearing conducted by the
trial court on its own motion to determine whether Martinez waived his right to appeal. It is
undisputed that waiver of the right to appeal was not an explicit or implicit term of the plea bargain
agreement between Martinez and the State. The State argues, however, that the trial court
unilaterally made waiver of the right to appeal an additional term of the plea bargain, and Martinez
agreed on the record to waive his right to appeal the suppression ruling. The record does not
support the Stateís position.
The trial courtís admonishments to Martinez that his plea of guilty operated as a complete
waiver of his right to appeal ďunder Texas lawĒ and he could not appeal any issue unless he had



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permission to appeal are incorrect and misleading statements of law. The trial court repeated these
erroneous statements of law at the status hearing when it informed Martinez that he could not
appeal the suppression ruling without the courtís permission. Under Article 44.02 and Rule
25.2(a)(2), a defendant who enters a negotiated guilty plea has the right to appeal rulings on written
pretrial motions and he is not required to obtain the trial courtís permission to appeal.
Consequently, the trial court erred by informing Martinez that he was required to secure the courtís
permission to appeal the suppression ruling.
We also do not agree with the trial court and the State that Martinezís acquiescence to the
trial courtís incorrect statements of law amounted to a valid waiver of the right to appeal the
suppression ruling. In order for a waiver of the right to appeal to be valid, it must be made
voluntarily, knowingly, and intelligently. A defendant does not waive his right to appeal by merely
agreeing with the trial courtís erroneous pronouncement regarding the defendantís right to appeal.
See Sims v. State, 326 S.W.3d 707, 710 n.3 (Tex.App.--Texarkana 2010, no pet.)(defendantís
acknowledgement of inaccurate and misleading admonishment regarding her right to appeal did
not constitute a valid waiver of the right to appeal and was irrelevant; it was ďnothing more than
her acknowledgement of a pronouncement by the trial court.Ē). Martinezís agreement with the
trial courtís erroneous and misleading statements regarding the unavailability of appeal cannot be
said to constitute a voluntary, knowing, and intelligent waiver of the right to appeal.
The trial courtís recollection that waiver of the right to appeal was a term of the plea bargain
is not supported by the record of the guilty plea hearing. As already noted, the plea papers do not
contain a written waiver of the right to appeal. The trial courtís comments made during the guilty
plea clearly indicate that the court was attempting to explain to Martinez its understanding, albeit
mistaken, of Martinezís right to appeal ďunder Texas lawĒ and the effect of his guilty plea on that



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right. The court never mentioned during this exchange with Martinez that the court was asking
him to waive his right to appeal the suppression ruling as a new and additional term of the plea
bargain. We conclude that waiver of the right to appeal was not a term of the plea bargain, and
Martinez did not voluntarily, knowingly, and intelligently waive his right to appeal the suppression
ruling. Consequently, the trial courtís certification that Martinez does not have a right to appeal
the suppression ruling is defective because it is contrary to the law and the record before the Court.

Outcome: We abate the appeal and remand the cause to the district court for entry of an amended certification addressing Martinezís limited right to appeal the suppression ruling. The amended certification should be filed with the trial court clerk no later than January 31, 2018. The amended certification shall be included in a supplemental clerkís record and filed with this Court no later
than February 10, 2018.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
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