Marsh, Robert Lane

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1034-13

ROBERT LANE MARSH, Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTH COURT OF APPEALS
BEXAR COUNTY

M EYERS, J., delivered the opinion of the Court in which P RICE,
W OMACK, J OHNSON, K EASLER, H ERVEY, C OCHRAN, and A LCALA, JJ., joined.
K ELLER, P.J., filed a concurring opinion.

OPINION

After Appellant’s pretrial motion to suppress was denied, he pled nolo contendere

pursuant to a plea bargain. The written plea agreement, signed by all parties, included a

waiver of appeal, and Appellant asserted that he understood this when questioned by the

trial judge. The judge then sentenced Appellant as agreed upon and entered a certification

that stated Appellant had no right of appeal. One month later, Appellant filed a motion to
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amend the certification to reflect that he did have a right to appeal, which the court of

appeals granted, ordering the trial court to correct the certification. With the amended

certification, Appellant then appealed the denial of his pretrial motion to suppress. The

court of appeals affirmed the trial court’s denial of the motion, but also asserted that the

State had not preserved its argument that the amended certification was defective, and

concluded that the evidence did not support the State’s argument that Appellant had

waived his right to appeal. Marsh v. State, 405 S.W.3d 163, 168-71 (Tex. App.–San

Antonio 2013). We granted the State’s petition for discretionary review to determine

whether the Texas Rules of Appellate Procedure required the State to preserve its

argument that Appellant waived his right to appeal, whether the court of appeals erred in

dictating to the trial court the content of Appellant’s new certification, and whether the

court of appeals erred in concluding that Appellant did not specifically waive his right to

appeal as part of the plea bargain.

FACTUAL AND PROCEDURAL HISTORY

Appellant was charged with unlawful possession of a firearm by a felon. He filed a

pretrial motion to suppress evidence, which the trial court denied. Appellant then entered

into a plea agreement with the State in which he was to plead nolo contendere, accept

punishment of a $1,500 fine and eight years’ imprisonment, and pay restitution. In return,

the State agreed to request that the judge take into consideration or dismiss 10 other

felony charges and eight other misdemeanor charges. Part of the written plea agreement,
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which was signed by Appellant, included a waiver of appeal, which stated:

I understand that upon my plea of guilty or nolo contendere, where the
punishment does not exceed that recommended by the prosecutor and
agreed to by me, my right to appeal will be limited to only: (1) those matters
that were raised by written motion filed and ruled on before trial, or (2)
other matters on which the trial court gives me permission to appeal. I
understand that I have this limited right to appeal. However, as part of my
plea bargain agreement in this case, I knowingly and voluntarily waive my
right to appeal under (1) and (2) in exchange for the prosecutor’s
recommendation, provided that the punishment assessed by the court does
not exceed our agreement.

During the plea proceedings, the judge spoke to Appellant about the provisions of the

agreement, including the following exchange:

THE COURT: On each of these forms, Mr. Marsh, you signed indicating
that you understand that if I follow this agreement, you are waiving your
right of appeal. Did you in fact understand that, sir?

DEFENDANT: Yes, I did.

At sentencing, the judge again discussed Appellant’s right to appeal:

THE COURT: You signed a certification of defendant’s right of appeal.
You indicated by your signature that you understood that if I follow this
agreement, you will be waiving your right of appeal. Is this your signature
on each of these forms, Mr. Marsh?

DEFENDANT: Yes, it is.

The court accepted Appellant’s plea, sentenced Appellant as agreed upon, and prepared a

certification that recited that this was a plea-bargain case and that Appellant had no right

of appeal.

One month later, Appellant filed a motion for new trial and a motion to amend the
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trial court’s certification, claiming that he never waived his right to appeal the motion to

suppress as part of the plea agreement. Because the trial court did not rule on the motion

for new trial and motion to amend the trial court’s certification, Appellant filed a notice

of appeal with the court of appeals, indicating his intent to appeal the denial of his motion

to suppress. The court of appeals subsequently issued an order stating that Appellant did

have the right to appeal pretrial motions pursuant to Rule 25.2(a)(2)(A) and ordered the

trial court to amend the defective certification to reflect this right. This order stated in

part:

[A]ppellant has the right to appeal the denial of his motion to suppress filed
in trial court cause number 2009CR0761, and the trial court’s certification
in trial court cause number 2009CR0761 is defective. The trial court is
FURTHER ORDERED to correct this defect within fifteen days from the
date of this order. See Tex. R. App. P. 25.2(a)(2)(A).

The trial court complied, signing a new certification that stated that this was a plea-

bargain case but that Appellant had the right to appeal pretrial matters. The trial court also

made a handwritten notation on the certification stating that a motion to suppress had

been heard in the case.

Appellant then appealed his conviction, arguing that the trial court erred in denying

his motion to suppress because his consent to search was obtained incident to an illegal

arrest when he was detained without probable cause. Marsh, 405 S.W.3d at 165. The

State argued, however, that, as part of his plea bargain, Appellant had waived any right to

appeal altogether and that the amended certification of appeal was incorrect. Id. at 167-
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68. The court of appeals affirmed the trial court’s ruling on the motion to suppress,

finding that Appellant had given his consent to the search before the arrest became illegal.

Id. at 171. However, the court of appeals also decided that the State’s waiver argument

was not valid. Id. at 168. It asserted that Texas Rule of Appellate Procedure 25.2 required

the State to have filed a motion to strike the trial court’s entry of the amended

certification rather than have raised the argument for the first time in its appellate brief, as

it did. Id. Further, the court of appeals reasoned, the evidence did not show that Appellant

had waived his right to appeal the denial of his pretrial motion as part of his plea

agreement. Id.

Subsequently both the State and Appellant filed petitions for discretionary review

challenging the decision of the court of appeals. We granted the State’s petition to decide:

(1) whether Texas Rule of Appellate Procedure 25.2(f) imposes a burden on the State to

preserve an argument that a defendant waived his right to appeal; (2) if so, whether it also

unlawfully attempts to modify the substantive rights of a litigant by extending the right of

appeal to a defendant who has voluntarily, knowingly, and intelligently waived that right

as part of a plea bargain; (3) whether the court of appeals erred by dictating to the trial

court the content of the certification of the defendant’s right to appeal; and (4) whether

the court of appeals erred by concluding that the defendant did not “specifically waive[]

his right under Rule 25.2(a)(2)(A) to appeal a denial of his pre-trial motion to suppress as

part of the plea bargain agreement.
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DOES RULE 25.2(f) REQUIRE PRESERVATION?

Rule 25.2(f) of the Texas Rules of Appellate Procedure states:

An amended notice of appeal or trial court’s certification of the defendant’s
right of appeal correcting a defect or omission in an earlier filed notice or
certification, including a defect in the notification of the defendant’s
appellate rights, may be filed in the appellate court in accordance with Rule
37.1, or at any time before the appealing party’s brief is filed if the court of
appeals has not used Rule 37.1. The amended notice or certification is
subject to being struck for cause on the motion of any party affected by the
amended notice of certification. After the appealing party’s brief is filed,
the notice or certification may be amended only on leave of the appellate
court and on such terms as the court may prescribe.

The court of appeals read this rule as prohibiting the State from bringing up, for the first

time in its appellate brief, its complaint that the amended certification was inaccurate.

Marsh, 405 S.W.3d at 168.

The State contends that the court of appeals’s opinion requires the State to monitor

amended certifications that are filed, to object or complain each time one is filed that is

inaccurate, and to do so before the defendant files his brief. This would be required

despite the fact that the State’s appellate attorney may be unaware of the accuracy of the

certification prior to the filing of the appellant’s brief because the State may never see the

trial-court record until after that brief is filed. The State argues that the court of appeals

essentially concludes that the State is estopped from arguing that a certification is in

conflict with the record if the State did not file a motion to strike the certification before

the defendant’s brief was filed.

The State asserts that no published case supports this conclusion by the court of
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appeals. Instead, the State points out, this court held in Dears v. State, 154 S.W.3d 610,

615 (Tex. Crim. App. 2005), that a certification is defective if it is inaccurate when

compared to the record and that an appellate court has a duty to review the record in

ascertaining whether certifications are defective. The State also maintains that other

courts of appeals have permitted the State to raise, for the first time on appeal, a claim

that, contrary to the language on the certification, a defendant waived his right to appeal.

See Sherwood v. State, 340 S.W.3d 929, 932 (Tex. App.–El Paso 2011, no pet.); and see

Adams v. State, No. 02-11-00151-CR, 2012 Tex. App. LEXIS 2064 (Tex. App.–Fort

Worth March 15, 2012) (mem. op., not designated for publication). The State argues that,

because Texas Rule of Appellate Procedure 25.2(f) does not impose a burden on the State

to preserve an argument that a defendant waived his right to appeal, the judgment of the

court of appeals should be reversed.

Appellant contends, however, that the plain language of Rule 25.2(f) does require

the State to object to an amended certification prior to the filing of the appellant’s brief.

Any other reading of the rule, Appellant asserts, would invalidate the provision.

Appellant further argues that the State would not have to monitor every case in the system

to determine if an amended certification is filed, as it would have us believe. For

example, the State in this case was given notice of the amendment of the certification by

both the Appellant and the court of appeals and voluntarily took no action. Therefore,

Appellant believes the court of appeals’ interpretation of Rule 25.2(f) is correct and that
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its decision should be affirmed.

The court of appeals, in drawing its conclusion that the State’s claim had no merit

because it was raised for the first time on appeal, focused on the language in the rule that

states that “the amended notice or certification is subject to being struck for cause on the

motion of any party affected by the amended notice of certification.” Marsh, 405 S.W.3d

at 168. However, taken plainly, this phrase simply sets out that any affected party may

move to strike the amended certification. It does not contain any requirements or

prohibitions for objecting to the certification, and we do not believe it could be

reasonably interpreted to contain them. The court of appeals has failed to acknowledge

that this rule’s language plainly bears no mandate that the State raise a complaint about an

amended certification as a prerequisite to arguing such issue on appeal. In fact, as the

State discusses, the State often does not even see the record before the defendant files an

appellate brief. It would be unreasonable to compel the State to weigh in on the accuracy

of the certification without first having the opportunity to examine the record. For these

reasons, we conclude that the rule contains no preservation requirement and that the State

may complain about an inaccurately amended certification for the first time on appeal.

This interpretation is consistent with our previous decisions in Dears and Menefee.

In Dears we held that the court of appeals is obligated to compare the certification with

the record to ascertain whether a certification is defective and act accordingly. 154

S.W.3d at 615. In Menefee we clarified this holding by making clear that, while a court of
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appeals may sua sponte compare the certification to the record to determine accuracy, it is

not obligated to do so without a suggestion by the State that the two are inconsistent. 287

S.W.3d at 12 n.12. In both cases we acknowledged that the accuracy of the certification

would be considered even though the defendant’s appeal had commenced. Menefee even

clearly suggests that the court of appeals should examine the claim when the State makes

it.

Therefore, allowing the State to argue, for the first time on appeal, that the record

and certification are incompatible is in line with the plain language of the rule, with

practical considerations, and with our caselaw. We hold that the court of appeals erred in

determining otherwise.

DID THE COURT OF APPEALS ERR BY DICTATING THE CONTENTS OF
THE NEW CERTIFICATION TO THE TRIAL COURT?

The State argues that, by declaring to the trial court that “appellant has the right to

appeal the denial of his motion to suppress,” the court of appeals improperly dictated the

content of the certification in its order to the trial court. The State contends that the order

left no option for the trial court to make a contrary finding and failed to allow the court to

sign a certification indicating that Appellant had waived his right to appeal as part of the

plea agreement. The State asserts that the court of appeals’ order is in direct conflict with

our opinion in Greenwell v. Court of Appeals for the Thirteenth Dist., 159 S.W.3d 645,

650 n. 24 (Tex. Crim. App. 2005), in which we stated that courts of appeals are prohibited

from dictating the content of certifications. Because this order and the resulting
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certification were improper, the State believes that the court of appeals erred in failing to

dismiss Appellant’s appeal, the court of appeals’ judgment should be reversed, and the

appeal should be dismissed. Appellant, on the other hand, simply asserts that the court of

appeals had the right to order the trial judge to provide a valid certification because the

first certification filed was defective. See T EX. R. A PP. P. 34.5(c), 37.1.

While Appellant is correct in stating that the court of appeals had a right to order

the trial court to produce an amended certification that corrects the defective one, the

court of appeals here overstepped its authority by prescribing exactly what the new

certification should say. By explicitly setting out that the certification was defective

because Appellant had “the right to appeal the denial of his motion to suppress” and then

ordering the court to correct this defect within fifteen days, the court of appeals dictated

the content of the certification, contrary to what is permitted by the rules. Greenwell, 159

S.W.3d at 650 n. 24. Evidence of the dictation can be seen in the amended certification

itself, on which the judge not only checked the box that states that this is a plea-bargain

case in which the defendant has the right to appeal pretrial motions, but also handwrote in

a notation that specifies that this right refers to the motion to suppress heard in this case.

We agree with the State that the court of appeals’ order left the trial court with no option

but to amend the certification in exactly the way stated in that order. Because this order

was closer to a mandamus action than a request for the trial court to review the record and

submit a certification that comports with it, we conclude that the court of appeals violated
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the prohibition discussed in Greenwell and erred in its order to the trial court.

APPELLANT’S WAIVER OF HIS RIGHT TO APPEAL THE PRETRIAL
MOTION

The State asserts that the court of appeals’ conclusion that Appellant did not waive

his right to appeal the motion to suppress is in direct conflict with the record, which

includes Appellant’s signed plea agreement that states that he “knowingly and voluntarily

waive[s]” his right to appeal matters raised before trial and his verbal acknowledgments

to the trial court at the plea and sentencing hearings.

The appellant argues, however, that Texas Rule of Appellate Procedure

25.2(a)(2)(A) and Article 44.02 of the Texas Code of Criminal Procedure grant the right

to appeal matters raised and ruled upon prior to trial without having to get the permission

of the trial court. Appellant further asserts that there is no case in which an appellant has

been denied a right to appeal a written motion to suppress evidence filed and ruled upon

before trial. The State’s claim of waiver, therefore, directly conflicts with the plain

language of the rules, and the court of appeals’ judgment should be affirmed.

Appellant’s interpretation of the rules is correct. Rule 25.2(a)(2)(A) does, in fact,

grant defendants who plead guilty as part of a plea bargain the right to appeal pretrial

motions. What Appellant fails to recognize, however, is that a defendant may waive this

right, as long as the waiver is made “voluntarily, knowingly, and intelligently.” T EX.

C ODE C RIM. P ROC. art. 1.14 (“The defendant in a criminal prosecution for any offense

may waive any rights secured him by law.”); Ex parte Broadway, 301 S.W.3d 694, 697
 Marsh - Page 12

(Tex. Crim. App. 2009).

We agree with the State that the record shows that Appellant knowingly and

voluntarily waived his right to appeal the motion to suppress. The signed plea agreement

that explicitly sets out the waiver, combined with Appellant’s verbal acknowledgments of

the waiver support this conclusion. Given this evidence, we believe the court of appeals’

conclusion that the record does not indicate that Appellant waived his right to appeal is

not well supported. The court of appeals erred in failing to recognize what is a clear

waiver of appeal.

CONCLUSION

Because the State was permitted to bring its argument that the amended

certification was inaccurate for the first time on appeal and the evidence shows that

Appellant did, in fact, waive his right to appeal the pretrial motion to suppress, we vacate

the court of appeals’ decision. Further, because Appellant had validly waived his right to

appeal, the court of appeals never acquired jurisdiction. Therefore, we order the court of

appeals to withdraw its opinion and dismiss the appeal.

Delivered: October 1, 2014

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