Michael Leon Willingham v. The State of Texas

During the defense presentation of evidence in his jury trial for aggravated robbery,

Michael Leon Willingham accepted a plea bargain offer from the State that required him to plead

guilty and waive his right to appeal in exchange for the State’s agreement to strike two

enhancement paragraphs and the assessment of a ten-year sentence. The agreement was

documented in a written plea bargain agreement that spelled out the terms including appellant’s

waiver of the right to appeal. The trial court orally reviewed the terms with appellant and

received appellant’s assurances that he understood that if the trial court followed the terms of the

agreement, he would not be able to appeal. The trial court also filled out, and appellant signed, a

certification showing the case involved a plea bargain and appellant had no right to appeal. The

trial court instructed the jury to return an instructed verdict of guilty.

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During the jury deliberations, the jury sent out a note asking the trial court: “Is there a

choice of guilt or innocence? According to instructions we have to find guilty?” Appellant’s

counsel then asked the trial court if appellant could withdraw his guilty plea. The trial court

denied the request, reasoning that it would be prejudicial to appellant at this point to withdraw

the plea after the jury was aware of it. After a conference with trial counsel, appellant reaffirmed

on the record that he wanted to proceed with the plea bargain. The jury returned a guilty verdict

before the trial court could respond to the jury note. The trial court followed the plea agreement

and assessed the agreed punishment.

Because the trial court’s certification states appellant has no right to appeal and the

clerk’s record supports the certification, the Court directed the parties to file letter briefs

addressing the Court’s jurisdiction. In his letter brief, appellant conceded that the record showed

he entered into a plea bargain and waived his right to appeal. Nevertheless, appellant contended

the Court should not dismiss this case without acquiring and examining the reporter’s record

because of the unusual circumstances of appellant’s plea agreement. Specifically, appellant

raised three circumstances requiring further examination: (1) what rulings the trial court may

have made on pretrial motions; (2) whether appellant accepted the plea bargain and changed his

plea before or after the jury began deliberations; and (3) a determination of what response the

trial court gave the jury to its note. 1

The Court ordered the reporter’s record filed. It revealed appellant entered his agreement

with the State after the trial court made all of its pretrial rulings, after a jury was chosen, and

after appellant was able to hear the State’s entire presentation of the evidence and the most

critical defense witness. The trial court did not respond to the jury’s note. After the note was

1 In their letter briefs, the parties also informed the Court that there is an issue regarding whether appellant filed a valid notice of appeal. Because we have determined on other grounds that we have no jurisdiction, we need not resolve the efficacy of appellant’s notice of appeal.

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delivered, appellant consulted with counsel, and he determined to continue with the plea bargain

agreement.

By entering into a plea bargain agreement and accepting an agreed sentence, appellant

limited his right to appeal to those matters raised by written motion filed and ruled on before trial

and matters the trial court gives permission to appeal. See TEX. R. APP. P. 25.2(a)(2). The

record does not reflect the trial court has given permission to appeal. The record reflects only

two contested pretrial motions in this case. First, the trial court denied appellant’s request to

order the State to turn over before the start of voir dire any extra information it had about the

venire, including criminal histories of the potential jurors. The record does not disclose why the

trial court denied appellant’s request for potential juror information nor does it disclose whether

the State, in fact, had any such information. Appellant offers no argument in his jurisdictional

brief regarding why he would be entitled to the information. Secondly, the trial court granted

provisionally paragraph two of the State’s motion in limine seeking to restrict testimony about

specific acts of misconduct by the victim or any State’s witness. The restriction was aimed at

potential testimony by the complaining witness’s supervisor about instances of violations of store

policies concerning the confrontation of shoplifters. During the trial, however, the trial court

allowed the defense to question the supervisor, over the State’s objection, about the only instance

of misconduct the supervisor agreed had occurred. We conclude there is no basis in the trial

court’s pretrial rulings for an appeal. See id.; Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim.

App. 2006).

More importantly, however, the record shows appellant waived his right to appeal as part

of his plea bargain agreement. The waiver, given to secure the benefits of the plea bargain

agreement and supported by valuable consideration from the State in the form of striking

enhancement paragraphs and an agreed punishment, is enforceable against appellant. See Jones

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v. State, 488 S.W.3d 801, 807–08 (Tex. Crim. App. 2016); Ex parte Broadway, 301 S.W.3d 694,

699 (Tex. Crim. App. 2009).

For appellant to proceed with an appeal, the record must contain the trial court’s

certification showing he has a right to appeal. See TEX. R. APP. P. 25.2(d). In this case, the trial

court’s certification shows, correctly, that appellant has no right to appeal. Because the record

supports the trial court’s certification and further shows appellant waived the right to appeal, we

are required to dismiss the appeal without further action. See TEX. R. APP. P. 25.2(d); Chavez,

183 S.W.3d at 680.

Editor's Comment: Willingham was most likely innocent.