Antonine D. Henderson v. State, 04-15-00651-CR

Antonine Henderson pleaded no contest to possession of >28 g and <200 g of a penalty group 3 controlled substance pursuant to a written plea agreement recommending a $1,500 fine and three years’ incarceration, to run concurrently with other cases; five other causes were to be taken into consideration.
The written plea agreement included a separate, labeled “non-binding recommendation” that defendant would be subject to the full statutory range if he failed to appear for sentencing.
At the plea hearing the parties (and the court) announced and accepted an oral plea agreement that expressly stated: three years’ incarceration and $1,500 fine, but if Henderson failed to appear for sentencing he would be subject to the full range of punishment.
Henderson failed to appear at the scheduled sentencing; a capias issued and he was brought before the court for sentencing months later.
At sentencing the court found Henderson guilty and imposed ten years’ confinement (concurrent with other causes) and the trial court certified the case as a plea-bargain case stating Henderson had no right of appeal.
Henderson appealed, arguing the court exceeded the agreed three-year sentence and thus the certification was defective; the court of appeals reviewed the record and the plea colloquy.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether this is a plea-bargain case that bars a general appeal	Henderson: not a plea-bargain case because court imposed greater than agreed 3-year term	State: the plea as pronounced in open court made higher punishment available after Henderson’s failure to appear; thus it remained a plea bargain	Held: It is a plea-bargain case; certification accurate; appeal dismissed
Whether the oral plea agreement or the written agreement controls	Henderson: written agreement fixed punishment at 3 years	State: oral agreement announced at plea hearing (accepted by court) is enforceable	Held: Oral agreement announced and accepted in open court controls when accepted by the court
Whether the trial court exceeded the plea agreement by imposing 10 years	Henderson: sentence exceeded prosecutor’s recommendation	State: sentencing followed the enforceable term releasing the State from its recommendation after defendant failed to appear	Held: Ten-year sentence was permitted under the agreed consequence for failing to appear
Whether the defendant preserved any appealable pretrial motions	Henderson: (no asserted preserved motions)	State: no written motions filed and ruled on pretrial and no permission to appeal granted	Held: No preserved appeals; statutory route for appeal not available

Daniels v. State, 110 S.W.3d 174 (Tex. App.—San Antonio 2003) (procedural rule on certification and dismissal of appeals)
Marsh v. State, 444 S.W.3d 654 (Tex. Crim. App. 2014) (court of appeals may order trial court to reconsider defective certification)
Dears v. State, 154 S.W.3d 610 (Tex. Crim. App. 2005) (court of appeals should review clerk’s record to determine accuracy of trial court certification)
Brumley v. State, 359 S.W.3d 884 (Tex. App.—Beaumont 2011) (oral plea announced in open court controls where accepted and no objection to variance)
State v. Moore, 240 S.W.3d 248 (Tex. Crim. App. 2007) (terms making full range available after defendant’s breach are enforceable)