Kenneth Joseph Ouimet v. the State of Texas

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-25-00669-CR

Kenneth Joseph Ouimet, Appellant

v.

The State of Texas, Appellee

FROM THE 274TH DISTRICT COURT OF HAYS COUNTY
NO. CR-23-1221-C, THE HONORABLE DARYL RUSSELL COFFEY, JUDGE PRESIDING

ME MO RAN DU M O PI N I O N

Kenneth Joseph Ouimet attempts to appeal the trial court’s order placing him on

deferred adjudication. But he waived his right to appeal, and we therefore dismiss the appeal for

want of jurisdiction.

After the State agreed to dismiss cause number 25-1536CR-1 and recommend

deferred adjudication, Ouimet agreed to enter a plea of guilty to possession of a prohibited weapon

and waive his right to appeal. The trial court placed Ouimet on deferred adjudication probation

for ten years; the trial court’s certification provides that “the defendant has waived the right

of appeal.”

Ouimet thereafter filed a notice of appeal announcing his intention to challenge “the

voluntariness of the plea, breach of the plea agreement, and validity of the waiver of appeal rights.”

He filed requests for free Clerk’s and Reporter’s Records. The trial court held an indigency hearing
(at which Ouimet did not appear) and found Ouimet not indigent. The trial court also specifically

found that the certification, indicating Ouimet has no right to appeal, was signed by Ouimet and

that Ouimet “was admonished of his rights and his waivers, and was well aware that he had waived

appeal in exchange for the State keeping deferred open to the court at punishment.” Ouimet then

filed two motions in this court asking us to review the certification and order on indigence.

“An appellate court is obligated to review the record to determine if the certification

is contrary to the record and therefore defective. Jones v. State, 488 S.W.3d 801, 805 (Tex. Crim.

App. 2016).

The right to appeal may be waived, and such a waiver is valid if made voluntarily,

knowingly, and intelligently. Carson v. State, 559 S.W.3d 489, 492–93 (Tex. Crim. App. 2018).

A court of appeals lacks jurisdiction over and must dismiss an appeal when the defendant has

validly waived his right of appeal. See Jones, 488 S.W.3d at 808.

A waiver of appeal prior to sentencing may be valid if it is bargained for—if the

State gives some consideration for the waiver, even where a sentence is not agreed on. Ex parte

Broadway, 301 S.W.3d 694, 695-96, 699 (Tex. Crim. App. 2009). In Ex parte Broadway, counsel

had filed an affidavit stating Broadway “waived his right to appeal to induce the State to consent

to the waiver of a jury trial.” Id. at 695. The bargain was not a traditional plea-bargain agreement,

where the guilty plea is made in exchange for a certain sentence, but rather “a bargain of a different

sort.” Id. at 697. Here too, the record contains evidence of “a bargain of a different sort.”

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Page 5 of the Court’s Written Admonishments to the Defendant and Defendant’s Written Waiver

of Rights and Stipulation of Evidence for Plea of Guilty or Nolo Contendere contains the waiver

of the right to appeal.

These documents carry Ouimet’s initials and signature.

Rule 25.2(a)(2) does grant defendants who plead guilty as part of a plea bargain the

right to appeal rulings on pretrial motions. Tex. R. App. Proc. 25.2(a)(2)(A). And here, the trial

court denied a pretrial motion to suppress. But the defendant may waive this right, if the waiver

is made “voluntarily, knowingly, and intelligently.” Tex. Code Crim. Proc. art. 1.14 (“The

defendant in a criminal prosecution for any offense may waive any rights secured him by law.”).

And Ouimet has done that here. See Marsh v. State, 444 S.W.3d 654, 660 (Tex. Crim. App. 2014).

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Because the record reflects that Ouimet’s waiver was backed by consideration, and

was made voluntarily, knowingly, and intelligently, see Carson, 559 S.W.3d at 496, the trial court

correctly certified that Ouimet has no right of appeal. We therefore lack jurisdiction over and must

dismiss this appeal. Jones, 488 S.W.3d at 808; Tex. R. App. P. 25.2(d). We also dismiss as moot

the motions challenging the certification and non-indigency finding.

__________________________________________
Chari L. Kelly, Justice

Before Justices Triana, Kelly and Theofanis

Dismissed for Want of Jurisdiction

Filed: October 17, 2025

Do Not Publish

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