Anthony Paul Smith v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 20, 2024
• Docket: 01-24-00069-CR
• Status: Published

Opinion

Opinion issued August 20, 2024

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-24-00069-CR ——————————— ANTHONY PAUL SMITH, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 482nd District Court Harris County, Texas Trial Court Case No. 1725053

MEMORANDUM OPINION

Appellant, Anthony Paul Smith, was charged with the felony offense of

aggravated sexual assault of a child under the age of six.1 Pursuant to the Texas

Penal Code, “the minimum term of imprisonment” for the offense of aggravated

1 See TEX. PENAL CODE ANN. § 22.021(a), (c), (f)(1). sexual assault “is increased to 25 years if the victim of the offense is younger than

six years of age at the time the offense is committed.” See TEX. PENAL CODE ANN.

§ 22.021(f)(1). In accordance with a plea agreement, the State agreed, in exchange

for appellant’s voluntary and intentional guilty plea, to reduce the charge against

appellant from aggravated sexual assault of a child under six, carrying an increased

minimum sentence, to the lesser charge of aggravated sexual assault of a child under

fourteen. Also, as a part of the plea agreement, the State agreed to abandon an

enhancement paragraph that appellant had been previously convicted of a felony

offense.

In accordance with his plea agreement with the State, the trial court found

appellant guilty and assessed his punishment at confinement for thirty-five years.

Appellant, acting pro se, timely filed a notice of appeal from the trial court’s

judgment.

We dismiss the appeal for lack of jurisdiction.

“Courts always have jurisdiction to determine their own jurisdiction.” Harrell

v. State, 286 S.W.3d 315, 317 (Tex. 2009) (internal quotations omitted). Criminal

defendants have a statutory right to appeal their conviction. See TEX. CODE CRIM.

PROC. ANN. art. 44.02; Carson v. State, 559 S.W.3d 489, 492 (Tex. Crim. App.

2018). However, when a trial court enters a judgment of guilt, it must certify

2 whether the defendant has a right of appeal. See TEX. R. APP. P. 25.2(a)(2). Texas

Rule of Appellate Procedure 25.2(a) states that:

In a plea bargain case—that is, a case in which a defendant’s plea was guilty . . . and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant—a defendant may appeal only: (A) those matters that were raised by written motion filed and ruled on before trial, (B) after getting the trial court’s permission to appeal, or (C) where the specific appeal is expressly authorized by statute.

TEX. R. APP. P. 25.2(a)(2).

Accordingly, in a plea-bargain case, a defendant may only appeal those

matters that were raised by written motion filed and ruled on before trial or after

getting the trial court’s permission to appeal. Id.; see also TEX. CODE CRIM. PROC.

ANN. art. 44.02. An appeal must be dismissed if a certification showing that a

defendant has the right of appeal has not been made part of the record. See TEX. R.

APP. P. 25.2(d); see also Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App.

2005).

The clerk’s record in this case included a certification of appellant’s right of

appeal stating that this was “a plea-bargain case, and the [appellant] ha[d] NO right

of appeal.” The clerk’s record in this case also included the plea waivers and plea

terms, confirming that appellant agreed to plead guilty to the offense of aggravated

sexual assault of a child under the age of fourteen in exchange for the State’s

agreements (1) to reduce the charge against appellant from aggravated sexual assault

3 of a child under the age of six to the lesser charge of aggravated sexual assault of a

child under fourteen and (2) to abandon an enhancement paragraph. Further, the

trial court’s judgment stated that appellant waived his right to appeal, and there is no

indication in the appellate record that the trial court granted appellant permission to

appeal.

The appellate record supports the trial court’s certification. Because appellant

has no right of appeal, we must dismiss his appeal. See Chavez v. State, 183 S.W.3d

675, 680 (Tex. Crim. App. 2006) (“A court of appeals, while having jurisdiction to

ascertain whether an appellant who plea-bargained is permitted to appeal by [Texas

Rule of Appellate Procedure] 25.2(a)(2), must dismiss a prohibited appeal without

further action, regardless of the basis for the appeal.”).

Accordingly, we dismiss the appeal for lack of jurisdiction. See TEX. R. APP.

P. 43.2(f). We dismiss any pending motions as moot.

PER CURIAM

Panel consists of Justices Goodman, Guerra, and Farris.

Do not publish. TEX. R. APP. P. 47.2(b).