Abel Rivas v. State

• Court: Court of Appeals of Texas
• Decided: March 2, 2021
• Docket: 05-19-01588-CR
• Status: Published

Opinion

DISMISS and Opinion Filed March 2, 2021

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-01588-CR

ABEL RIVAS, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 194th Judicial District Court Dallas County, Texas Trial Court Cause No. F19-59242-M

MEMORANDUM OPINION Before Justices Partida-Kipness, Pedersen, III, and Goldstein Opinion by Justice Goldstein Abel Rivas entered a negotiated plea of guilty to burglary of a building. Under

the terms of the plea bargain, adjudication of appellant’s guilt was deferred and he

was placed on community supervision for three years. The trial court prepared and

signed a certification of the right to appeal stating “this is a plea-bargain case, but

matters were raised by written motion filed and ruled on before trial” and appellant

had the right to appeal. Appellant filed a pro se notice of appeal and was appointed

counsel. Counsel filed an Anders brief. Although appellant was notified of the brief

and informed of his right to file a pro se response, he did not do so. After further

review of the clerk’s record, the Court had questions concerning its jurisdiction and

sent counsel a letter requesting letter briefs addressing whether the Court has

jurisdiction over the appeal. Appellant’s counsel did not file a response; however,

the State filed a letter brief agreeing that the Court does not have jurisdiction.

Rule 25.2(a)(2) provides that in a plea-bargained case—one in which the trial

court assesses punishment that does not exceed the punishment to which the

defendant agreed—the defendant may appeal only (1) those matters raised by written

motion filed and ruled on before trial, (2) after getting the trial court’s permission to

appeal, or (3) if the appeal is specifically authorized by statute. See TEX. R. APP. P.

25.2(a)(2). When an appellant waives his right to appeal as part of his plea bargain

agreement with the State, a subsequent notice of appeal filed by him fails to “initiate

the appellate process,” thereby depriving this Court of jurisdiction over the appeal.

Lundgren v. State, 434 S.W.3d 594, 599, 600 (Tex. Crim. App. 2014); Theus v. State,

524 S.W.3d 765, 766 (Tex. App.—Houston [14th Dist.] 2017, no pet.).

Here, the clerk’s record shows no written pretrial motions were filed or ruled

on by the court. Appellant did not receive the trial court’s permission to appeal and

there is no specific statutory authorization that would authorize an appeal in this

case. Finally, during the November 15, 2019 plea hearing, the trial court admonished

appellant:

–2– You have entered into a plea bargain agreement with your attorney and the attorney for the State. That agreement is not binding on this Court. Meaning, if I see just cause, I do not have to follow the agreement. If I follow the plea bargain agreement, you waive your right to appeal this matter without my permission; do you understand?

Appellant responded that he understood.

The appellate record shows appellant waived his right to appeal in exchange

for the State’s recommendation of three years deferred adjudication and that the trial

court followed the plea bargain agreement. Under these circumstances, we have no

jurisdiction over the appeal or any outstanding motions and must dismiss without

further action. See Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006).

We dismiss this appeal for want of jurisdiction.

/Bonnie Lee Goldstein/ BONNIE LEE GOLDSTEIN JUSTICE

Do Not Publish TEX. R. APP. P. 47.2(b) 191588F.U05

–3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

ABEL RIVAS, Appellant On Appeal from the 194th Judicial District Court, Dallas County, Texas No. 05-19-01588-CR V. Trial Court Cause No. F19-59242-M. Opinion delivered by Justice THE STATE OF TEXAS, Appellee Goldstein. Justices Partida-Kipness and Pedersen, III participating.

Based on the Court’s opinion of this date, we DISMISS this appeal.

Judgment entered March 2, 2021

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