Carlos Renard Henry v. State

• Court: Court of Appeals of Texas
• Decided: August 18, 2016
• Docket: 01-15-01067-CR
• Status: Published

Opinion

Opinion issued August 18, 2016

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-15-01065-CR NO. 01-15-01066-CR NO. 01-15-01067-CR ——————————— CARLOS RENARD HENRY, Appellant

V. THE STATE OF TEXAS, Appellee

On Appeal from the 182th District Court Harris County, Texas Trial Court Case Nos. 1400600, 1417781, 1418788

MEMORANDUM OPINION

In three separate cases, appellant, Carlos Renard Henry, pleaded guilty to the

offenses of burglary of a habitation (trial court cause no. 1400600), theft (trial court

cause no. 1417781), and burglary of a motor vehicle (trial court cause no. 1418788). In each case, the trial court found appellant guilty and, in accordance with the terms

of appellant’s plea bargain agreements with the State, sentenced appellant to six

years’ imprisonment for each offense with the sentences to run concurrently.

Appellant, acting pro se, filed notices of appeal in each case and the trial court

appointed appellate counsel. We dismiss the appeals.

In the appeals of appellant’s convictions for burglary of a habitation (appellate

cause no. 01-15-01065-CR) and theft (appellate cause no. 01-15-01066-CR),

appellant’s appointed counsel has filed a motion to withdraw and an Anders brief

stating that the record presents no reversible error and that the appeals are frivolous.

See Anders v. California 386 U.S. 738, 87 S.Ct 1396, 18 L.Ed.2d 493 (1967). In the

appeal of appellant’s conviction for burglary of a motor vehicle (appellate cause no.

01-15-01067-CR), appellant’s counsel has filed a brief arguing that the trial court

erred by failing to substantially comply with Article 26.13 of the Texas Code of

Criminal Procedure because it incorrectly admonished appellant that the range of

punishment for the offense was 2 to 20 years’ incarceration rather than 2 to 10 years’

incarceration. See TEX. CODE CRIM. PROC ANN. art. 26.13(a)(1) (West Supp. 2015)

(requiring court to admonish defendant of range of punishment for offense before

accepting guilty plea).1

1 Appellant was indicted for and pled guilty to the offense of burglary of a motor vehicle with two prior convictions for burglary of a motor vehicle and additional enhancement paragraphs of two prior state jail felony convictions. Burglary of a motor vehicle with two 2 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. See TEX. R. APP. P. 25.2(a)(2); Terrell v. State, 245 S.W.3d

602, 604 (Tex. App.—Houston [1st Dist.] 2007, no pet.). An appeal must be

dismissed if a certification showing that the defendant has the right of appeal has not

been made part of the record. See TEX. R. APP. P. 25.2(d). Here, the trial court

certified that all three of these cases are plea-bargain cases for which the defendant

has no right of appeal. See TEX. R. APP. P. 25.2(a)(2). The judgments in each case

further note that appeals were waived and no permission to appeal has been granted.

We hold that the trial court’s certifications that these cases are plea bargain

cases and that the appellant has no right of appeal are supported by the record. See

TEX. R. APP. P. 25.2(a)(2). Moreover, although the trial court’s admonishment

incorrectly stated that the range of punishment for appellant’s offense of burglary of

a motor vehicle was 2 to 20 years’ incarceration rather than 2 to 10 years’

incarceration, appellant’s sentence of six years’ incarceration lies within both the

actual and misstated maximum. As a result, the trial court’s admonishment was in

prior convictions for the offense is a state jail felony. TEX. PENAL CODE. ANN. §30.04(d)(2)(A) (West 2011). Punishment upon conviction of a state felony offense is elevated to a third degree felony if the defendant has been previously convicted of two state jail felony offenses. TEX. PENAL CODE ANN. §12.425(a) (West Supp. 2015). The punishment range for a third degree felony is not more than 10 years’ or less than 2 years’ incarceration. TEX. PEN. CODE ANN. §12.34(a) (West 2011). 3 substantial compliance with TEX. CODE CRIM. PROC. art. 26.13. See Martinez v.

State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (holding that trial court’s

admonishments substantially complied with requirements where appellant was

“improperly admonished that he faced a punishment range of life or two to ten years

. . . [and] ultimately received a ten year sentence, which is well short of life and lies

squarely within both the actual and misstated range.”) (citing Robinson v. State, 739

S.W.2d 795 (Tex. Crim. App. 1987)).

Because appellant has no right of appeal, we must dismiss these appeals. 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 Rule 25.2(a)(2), must dismiss a prohibited appeal without

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

these appeals for want of jurisdiction. We grant counsel’s motions to withdraw and

dismiss any other pending motions as moot.

PER CURIAM

Panel consists of Justices Bland, Massengale, and Lloyd.

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