Reported / Citable
Background
Terry Thomas Kingsbury pleaded guilty in Chambers County, Texas to two offenses: continuous sexual abuse of a child (a first-degree felony) and indecency with a child by exposure (a third-degree felony). The trial court convicted him and sentenced him to 33 years and 10 years confinement, respectively, to run concurrently. The trial court also certified in each case that Kingsbury had no right of appeal because the cases were plea bargain cases.
Kingsbury filed pro se notices of appeal in both cases. The appellate court initially questioned whether the trial court’s certifications were accurate, because the record in each case contained an “Unagreed Punishment Recommendation” showing that the State and Kingsbury had disagreed on the appropriate sentence. Under Texas Rule of Appellate Procedure 25.2(a)(2), a plea bargain case requires that punishment not exceed what the prosecutor recommended and the defendant agreed to — and here, no agreed punishment recommendation existed.
The First Court of Appeals abated the cases and remanded them to the trial court to make findings on Kingsbury’s right to appeal. The trial court’s supplemental findings revealed that, in exchange for Kingsbury’s guilty pleas, the State had agreed to dismiss a third charge — indecency with a child by sexual contact (a second-degree felony) — and not to seek consecutive sentences.
The Court’s Holding
The court held that the State’s agreement to dismiss the contact charge in exchange for Kingsbury’s guilty pleas constituted a plea bargain — specifically a “charge bargain” — under established Texas law. Relying on Shankle v. State, 119 S.W.3d 808 (Tex. Crim. App. 2003), the court explained that when the State agrees to dismiss a charge in exchange for a guilty plea and the trial court sentences the defendant within the statutory range for the remaining charges, the arrangement qualifies as a plea bargain regardless of whether there was an agreed punishment recommendation.
Because Kingsbury’s sentences of 33 years and 10 years each fell within the applicable statutory ranges, the charge dismissal was a valid plea bargain. The trial court’s certifications — stating these were plea bargain cases in which Kingsbury had no right of appeal — were therefore correct. Accordingly, the court reinstated the cases and dismissed both appeals for lack of jurisdiction without further action, citing Chavez v. State, 183 S.W.3d 675 (Tex. Crim. App. 2006).
Key Takeaways
- A charge bargain — where the State dismisses one or more charges in exchange for a guilty plea — qualifies as a “plea bargain” under Texas Rule of Appellate Procedure 25.2(a)(2), stripping the defendant of the right to appeal even when no agreed punishment recommendation exists.
- The absence of an agreed sentence recommendation does not automatically entitle a defendant to appeal; courts must examine the full record, including dismissed charges and sentencing agreements, to determine whether a plea bargain occurred.
- When a trial court’s certification that a defendant has no right of appeal appears inconsistent with the record, Texas appellate courts will abate and remand for supplemental findings before dismissing — but a corrected certification will still result in dismissal.
Why It Matters
This case illustrates that Texas defendants who plead guilty as part of charge bargains — where the benefit is a dismissed count rather than an agreed sentence — cannot later appeal their convictions or sentences as a matter of right. Defense attorneys must advise clients before entering such pleas that the trade-off for a charge dismissal is the loss of appellate review, even when the ultimate sentence is left to the trial court’s discretion.
The decision also offers a practical procedural lesson: when a certification of no right to appeal appears facially inconsistent with the record, the First Court of Appeals will pause and seek clarification rather than dismiss outright. That added step may provide a brief window for the record to be clarified, but as this case shows, a fully developed record can still confirm the defendant’s lack of appellate rights.