PD-0748-17 11/01/2017
“Did Appellant voluntarily, knowingly and intelligently waive his right of appeal by signing a boilerplate waiver?”
After the trial court denied Lackey’s motion to quash, he and the State entered a plea bargain agreement, and Lackey signed plea papers that included a waiver of the right to appeal. At the plea colloquy, no one mentioned an appeal or waiver of appeal. At a later sentencing hearing, Lackey’s attorney advised that the defense intended to appeal the denial of the motion to quash and had only gone forward with the plea on the understanding that Lackey could appeal the pretrial ruling. The prosecutor objected, asserting that appeal had been waived. He disputed the defense claim that they had discussed appeal during plea negotiations. The trial judge considered an appeal to be waived unless it was brought to the court’s attention at the time of the plea. The judge filed an amended certification of the right to appeal indicating that it was a plea bargain case and that Lackey had waived his right to appeal. Over a dissent, the majority of the court of appeals dismissed the appeal based on the amended certification.
Citing Alzarka v. State, 90 S.W.3d 321 (Tex. Crim. App. 2002), Lackey argues that courts do not enforce boilerplate waivers of appeal if the record contains other information that the defendant did not intend to waive his right to appeal. He argues that defense counsel’s statements at the sentencing hearing provides this other information and that the trial judge and prosecutor should not be allowed to veto his intent to appeal.
