In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00150-CR
No. 02-21-00151-CR
___________________________
HENRY ARTHUR DIGGS MARSH AKA HENRY M. DIGGS, Appellant
V.
THE STATE OF TEXAS
On Appeal from 297th District Court
Tarrant County, Texas
Trial Court Nos. 1606783D, 1606784D
Before Kerr, Birdwell, and Womack, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
Appellant Henry Arthur Diggs Marsh, also known as Henry M. Diggs, entered
charge bargains with the State on two offenses. Before the charge bargain, on each
offense, Diggs faced an imprisonment range of twenty-five years to life. After the
charge bargain, on each offense, Diggs faced an imprisonment range of not more than
twenty years or less than two years and a fine not to exceed $10,000. Diggs went open
to the court on punishment. The trial court heard evidence and then sentenced Diggs
to fifteen years’ imprisonment on each offense. After Diggs filed a joint notice of
appeal for both offenses, the trial court—on three occasions—declined to grant Diggs
permission to appeal. We dismiss both of Diggs’s appeals for want of jurisdiction. See
Tex. Code Crim. Proc. Ann. art. 44.02; Tex. R. App. P. 25.2(a)(2).
II. BACKGROUND
A. The indictments
In cause number 02-21-00150-CR,1 the State indicted Diggs for unlawful
possession of a firearm by a felon, a third-degree felony. See Tex. Penal Code Ann.
§ 46.04(a), (e). The indictment contained a habitual offender notice alleging felony
convictions in 2010 and 1999. By the State’s alleging two prior felony convictions,
1
Our appellate cause number corresponds to trial court cause number 1606783D.
2
Diggs faced a punishment range of life in prison or imprisonment for any term of not
more than 99 years or less than 25 years. See id. § 12.42(d).
In cause number 02-21-00151-CR,2 the State indicted Diggs for possession of
four grams or more but less than two hundred grams of a controlled substance
(methamphetamine), a second-degree felony. See Tex. Health & Safety Code Ann.
§ 481.115(d). As with the other indictment, this one contained a habitual offender
notice alleging felony convictions in 2010 and 1999 that increased Diggs’s punishment
range to life in prison or imprisonment for any term of not more than 99 years or less
than 25 years. See Tex. Penal Code Ann. § 12.42(d).
B. Plea bargain fails
Initially, the State offered Diggs fifteen-year sentences in exchange for his pleas
of guilty. Diggs rejected the offer.
C. Plea bargain succeeds
Several months later, Diggs accepted a plea agreement. In cause number 02-21-
00150-CR, the State agreed to waive one prior felony enhancement, and Diggs agreed
to plead guilty and go open to the court for punishment. By the State’s waiving one of
the two prior felony convictions, Diggs faced a punishment range of a second-degree
felony, that is, imprisonment for any term of years of not more than twenty years or
less than two years and a fine not to exceed $10,000. Id. §§ 12.33, 12.42(a).
2
Our appellate cause number corresponds to trial court cause number 1606784D.
3
And in cause number 02-21-00151-CR, the State agreed to waive both felony
enhancements, and Diggs agreed to plead guilty and go open to the court for
punishment. By the State’s waiving the prior felony enhancements, Diggs faced—as
with the other offense—a punishment range of a second-degree felony, that is,
imprisonment for any term of years of not more than twenty years or less than two
years and a fine not to exceed $10,000. See Tex. Health & Safety Code Ann.
§ 481.115(d); Tex. Penal Code Ann. § 12.33.
D. Sentencing
The record for the sentencing hearing confirms that Diggs pleaded guilty in
exchange for the State’s dropping the felony enhancements.3 At the hearing’s
conclusion, the trial court assessed Diggs’s punishment at fifteen years’ confinement
for both offenses. The trial court said nothing about giving Diggs permission to appeal.
E. Judgments
The judgment for cause number 02-21-00150-CR identifies the terms of the plea
bargain as “Waive 1 prior; guilty plea: open to judge.” The judgment for cause number
3
For example, when cross-examining Diggs, the prosecutor asked him, “Now,
we’ve agreed when you pled guilty earlier to waive one of those priors and let you plead
as a repeat offender instead. Now, you -- you understand that that is a gift in and of
itself?” Diggs responded, “I do understand that.” And before sentencing Diggs, the
trial court said, “Mr. Diggs, you got a lot of justice when the State waived that habitual
offender paragraph and put you -- because if they would have tried you, you would have
been 25 to 99 or life, if they wanted to put that on you; they didn’t do that.”
4
02-21-00151-CR identifies the terms of the plea bargain as “Waive enhancement; guilty
plea: open plea w/PSI.”
F. Correspondence regarding whether Diggs had the right to appeal
Diggs then filed a joint notice of appeal for both cases. Thereafter, this court,
Diggs’s counsel, and the trial court wrestled with whether Diggs had the right to appeal
his convictions.
1. Original “Certification of Defendant’s Right of Appeal”
The trial court initially signed certifications of “Defendant’s Right of Appeal” in
which it checked the option indicating that Diggs’s appeals were plea-bargain cases and
that he had no right of appeal.
2. Clerk’s letter challenging Diggs’s right of appeal
A few days later, we sent a clerk’s letter asserting that Diggs had no right of
appeal in either case and asking Diggs to explain why his appeals should not be
dismissed.
3. First amended “Certification of Defendant’s Right of Appeal”
Diggs responded by filing a first amended certification of “Defendant’s Right of
Appeal” in which a visiting judge wrote, “Limited right of appeal. Defendant pleaded
open to the court.”
4. Clerk’s records filed
About a month later, the clerk’s records for both appeals were filed.
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5. Clerk’s letter challenging Diggs’s right of appeal
After reviewing the clerk’s records, we sent another clerk’s letter explaining that
the records reflected that Diggs had entered charge bargains and was, thus, not entitled
to appeal. See Shankle v. State, 119 S.W.3d 808, 813–14 (Tex. Crim. App. 2003). We
again asked Diggs to explain why his appeals should not be dismissed.
6. Second amended “Certification of Defendant’s Right of Appeal”
Responding to our second clerk’s letter, Diggs filed a second amended
certification of “Defendant’s Right of Appeal” in which the trial court again asserted,
“Limited right of appeal. Defendant pleaded open to the court.” Unlike the first
amended certification, which was signed by a visiting judge, the presiding judge signed
the second amended certification.
In addition to filing a second amended certification, Diggs also filed a letter
response in which he argued that he and the State had not entered into a charge bargain.
In support of that assertion, he cited Shankle. See id.
7. Clerk’s letter indicating that Diggs’s appeals would proceed
We then sent a third clerk’s letter stating that we would continue the appeals.
The clerk’s letter did not, however, purport to have resolved the jurisdictional issue.
Instead, in concert with allowing the appeals to continue, the clerk’s letter indicated that
the reporter’s record, which had not yet been filed, was now due. See Dears v. State,
154 S.W.3d 610, 615 (Tex. Crim. App. 2005) (“If the court chooses to examine a
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certification after the record is filed, it has the ability to compare the certification to the
record and, in that instance, a duty to do so.”).
G. Briefing
Thereafter, Diggs’s appointed counsel filed an Anders brief for both cases. See
Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). Although thorough,
counsel’s Anders brief did not address any of our jurisdictional concerns. When Diggs
failed to file a response to his counsel’s Anders brief, we asked for a response from the
State. The State filed a letter response in which it agreed with Diggs’s counsel that
Diggs’s appeals were frivolous.
III. DISCUSSION
Because subject matter jurisdiction cannot be conferred by the parties’
agreement, courts may sua sponte address jurisdictional issues. State v. Palmer,
469 S.W.3d 264, 268 (Tex. App.—Fort Worth 2015, pet. ref’d). As discussed above,
from the outset, we questioned our jurisdiction because the record appeared to show
that Diggs and the State had entered into a charge bargain. See Shankle, 119 S.W.3d at
813.
A. Charge bargain
In Diggs’s response to our second clerk’s letter, he disputed whether what he
and the State did constituted a charge bargain:
The plea in this case was not a charge bargain. The State waived the
Habitual Offender Notice, however, unlike in Shankle . . . [,] the State here
did not recommend any potential sentence nor did the Appellant and State
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agree on a punishment cap other than what the possible punishment range
was for the charged offenses.
We agree that Diggs and the State did not enter a sentence bargain, that is, they did not
agree on the punishment to be assessed. See id. But we disagree with Diggs’s assertion
that they did not enter a charge bargain. The Texas Court of Criminal Appeals has
already refuted Diggs’s argument in Shankle: “It is obvious that sentence-bargaining
involves punishment, and almost equally obvious that charge-bargaining affects
punishment. An agreement to dismiss a pending charge, or not to bring an available
charge, effectively puts a cap on punishment at the maximum sentence for the charge
that is not dismissed.” Id. The record does not show that Diggs’s decision to plead
guilty was unrelated to the State’s decision to drop one felony enhancement in cause
number 02-21-00150-CR and to drop both felony enhancements in cause number 02-
21-00151-CR.
B. Charge bargains, Article 44.02, and Rule 25.2
Charge bargains fall within the parameters of Article 44.02 of the Texas Code of
Criminal Procedure and Rule 25.2(a)(2) of the Texas Rules of Appellate Procedure,
which govern defendants’ rights to appeal following plea bargains. Id. at 812–14; Harper
v. State, 567 S.W.3d 450, 453–55 (Tex. App.—Fort Worth 2019, no pet.); see Tex. Code
Crim. Proc. Ann. art. 44.02; Tex. R. App. P. 25.2(a)(2); see also Kennedy v. State, 297 S.W.3d
338, 341–42 (Tex. Crim. App. 2009) (“The court of appeals and the parties in this case
incorrectly assumed that [the defendant’s] right to appeal was not governed by Rule
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25.2(a)(2), presumably because the plea papers are titled, ‘open plea.’ However, the
record . . . shows that the State and [the defendant] entered into a charge-bargain
agreement.”); Barnard v. State, No. 02-19-00184-CR, 2021 WL 832650, at *1 (Tex.
App.—Fort Worth Mar. 4, 2021, no pet.) (mem. op., not designated for publication)
(“[T]he record shows a charge bargain with [the defendant] going ‘open’ to the court
for punishment. The guilty plea itself was not open (it was settled); rather, it was the
punishment to be imposed based on the guilty plea that was open (it was not settled).”).
C. Applying Article 44.02 and Rule 25.2
Under Article 44.02 and Rule 25.2(a)(2), unless the record shows that the trial
court gave permission to appeal or that the appeal is based on matters raised by written
motion filed before trial and ruled on by the trial court, we do not have jurisdiction to
consider Diggs’s appeals. See Tex. Code Crim. Proc. Ann. art. 44.02; Tex. R. App. P.
25.2(a)(2)(A). The records do not show that the trial court denied any of Diggs’s pretrial
motions. All that leaves is whether the trial court granted Diggs permission to appeal.
See Robles v. State, Nos. 02-21-00131-CR, 02-21-00132-CR, 2022 WL 3097288, at *2 n.1
(Tex. App.—Fort Worth Aug. 4, 2022, no pet.) (mem. op., not designated for
publication).
The forms used here to certify Diggs’s right to appeal followed verbatim the
form provided in the Texas Rules of Appellate Procedure, which lists the following
options:
I certify that this criminal case:
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□ is not a plea-bargain case, and the defendant has the right of appeal;
□ is a plea-bargain case, but matters were raised by written motion filed
and ruled on before trial and not withdrawn or waived, and the defendant
has the right of appeal;
□ is a plea-bargain case, but the trial court has given permission to appeal,
and the defendant has the right of appeal;
□ is a plea-bargain case, and the defendant has NO right of appeal;
□ the defendant has waived the right of appeal.
Tex. R. App. P. app. D.
Although the trial court signed three different certificates of the “Defendant’s
Right to Appeal,” and although each certificate contained the option of granting Diggs
permission to appeal, the trial court never checked one of those boxes. Rather, the trial
court handwrote in and checked a box of its own creation, which neither Rule 25.2 nor
Appendix D of the Texas Rules of Appellate Procedure authorizes.
In its interlineation, the trial court wrote, “Limited right of appeal. Defendant
pleaded open to the court.” In the past, we have construed handwritten notations as
evidence of the trial court’s intent to grant permission to appeal. For example, in
Anderson v. State, which involved a charge bargain, the trial court incorrectly wrote that
the defendant’s case was not a plea-bargain one, but the trial court added that “the
defendant ha[d] the right of appeal as to punishment only.” No. 02-16-00392-CR, 2017
WL 2805870, at *1 n.2 (Tex. App.—Fort Worth June 29, 2017, no pet.) (per curiam)
(mem. op., not designated for publication). We construed the latter language as
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evidence of the trial court’s permission to appeal any punishment issue. Id. Diggs’s
appeals, however, are distinguishable. The trial court here neither identified any issue
that Diggs could appeal nor explained the meaning of its interlineation. We do not
know what the trial court meant.4
For jurisdictional purposes, the trial court—although given three
opportunities—did not check the box granting Diggs permission to appeal. Therefore,
we hold that the trial court did not give Diggs permission to appeal.5
IV. CONCLUSION
We dismiss both of Diggs’s appeals for want of jurisdiction. See Tex. Code Crim.
Proc. Ann. art. 44.02; Tex. R. App. P. 25.2(a)(2).
4
Courts sometimes describe the defendant as having a limited right of appeal and
then cite Rule 25.2 of the Texas Rules of Appellate Procedure. See, e.g., Dryden v. State,
No. 06-20-00061-CR, 2020 WL 5539092, at *1 (Tex. App.—Texarkana Sept. 16, 2020,
no pet.) (mem. op., not designated for publication); Stewart v. State, No. 04-18-00419-
CR, 2018 WL 3998494, at *1 (Tex. App.—San Antonio Aug. 22, 2018, pet. ref’d) (per
curiam) (mem. op., not designated for publication); Martinez v. State, No. 08-17-00253-
CR, 2018 WL 345830, at *1 (Tex. App.—El Paso Jan. 10, 2018, no pet.) (per curiam)
(not designated for publication). And the use of the term “open plea” is ambiguous.
See Harper, 567 S.W.3d at 454.
5
We encourage trial courts to minimize appeal-certification issues by adhering to
the court of criminal appeals’ recommended options in Appendix D to the Texas Rules
of Appellate Procedure.
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/s/ Dana Womack
Dana Womack
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: February 23, 2023
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