Unreported / Non-Citable
Background
Kenneth Sherman pleaded guilty in the 178th District Court of Harris County, Texas to aggravated robbery with a deadly weapon, a first-degree felony under Texas Penal Code § 29.03(a). Pursuant to a plea bargain with the State, the trial court sentenced him to twenty years’ incarceration in the Correctional Institutions Division of the Texas Department of Criminal Justice, in accordance with the State’s agreed recommendation.
Sherman filed a pro se notice of appeal. The notice contained the handwritten notation “Deny Bond Appeal” at the top, suggesting Sherman may have intended to appeal both his conviction and the trial court’s denial of bond pending appeal. The trial court’s certification of defendant’s right of appeal stated that Sherman had no right of appeal because the case was resolved by plea bargain.
The Court’s Holding
The First Court of Appeals dismissed the appeal for lack of jurisdiction. Under Texas Rule of Appellate Procedure 25.2(a)(2), a defendant who enters into a plea bargain has no right of appeal except as to written motions ruled on before trial, or where the trial court grants permission to appeal. The clerk’s record contained no qualifying pre-trial motions — only a motion to substitute counsel — and the trial court did not grant permission to appeal.
As to the denial of bond on appeal, the court likewise found no jurisdiction, as the trial court had not granted Sherman permission to appeal that order under Rule 25.2(a)(2)(B). Citing Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006), the court noted it was required to dismiss a prohibited appeal without further action regardless of the basis asserted. All pending motions were dismissed as moot.
Key Takeaways
- A defendant who pleads guilty pursuant to a plea bargain generally waives the right to appeal the conviction under Texas Rule of Appellate Procedure 25.2(a)(2).
- The narrow exceptions to this rule — written pre-trial motions ruled upon before trial, or trial court permission to appeal — must appear in the clerk’s record; their absence is fatal to appellate jurisdiction.
- A pro se appeal does not create jurisdiction where none exists; appellate courts must dismiss prohibited appeals without reaching the merits.
Why It Matters
This memorandum opinion is a routine but instructive reminder of the strict jurisdictional limits on criminal appeals following plea bargains in Texas. Defense counsel must advise clients entering guilty pleas that their appellate options are sharply curtailed, and must preserve any issues for appeal through written pre-trial motions or by securing express trial court permission before the plea is entered.
The case also illustrates that attempted pro se appeals — including on collateral matters such as bond denial — cannot circumvent the certification requirements of Rule 25.2. Courts have no discretion to look past these limits, as Chavez makes clear that dismissal is mandatory once a prohibited appeal is identified.