Curtis Wayne Rogers v. State

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-10-00363-CR

CURTIS WAYNE ROGERS APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY

MEMORANDUM OPINION1 ----------

Pursuant to a plea bargain, Appellant Curtis Wayne Rogers pleaded guilty

to possession of four grams or more but less than two hundred grams of

methamphetamine with intent to deliver.2 The trial court’s original certification of

1 See Tex. R. App. P. 47.4. 2 Rogers entered into a “split” plea bargain with the State, in which the State agreed to recommend five years’ confinement provided that if, before the sentencing hearing, Rogers was charged with a new offense or violated a condition of his bond, or if he failed to appear for the sentencing hearing, then the State agreed to recommend thirty years’ confinement. After Rogers failed to Rogers’s right to appeal states that he waived the right to appeal. The trial court

subsequently entered an amended certification, stating that this “is not a plea-

bargained case, and the defendant has the right of appeal.”

On May 5, 2011, we notified the trial court that its amended certification

was defective and ordered a second amended certification of Rogers’s right to

appeal to state that this case is a plea-bargained case and to indicate whether

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

whether the trial judge has given permission to appeal. See Tex. R. App. P.

25.2(a)(2), (d), (f), 37.1; Dears v. State, 154 S.W.3d 610, 613–15 (Tex. Crim.

App. 2005). On May 18, 2011, we received the trial court’s second amended

certification of Rogers’s right to appeal. The certification states that this “is a

plea-bargain case, and the defendant has NO right of appeal.”

On May 18, 2011, we sent the parties a letter notifying them that the

appeal may be dismissed unless any party files a response showing grounds for

continuing the appeal based upon the new certification. See Tex. R. App. P.

25.2(d), 43.2(f). Rogers filed a pro se response arguing that the trial court did not

provide him an opportunity to withdraw his guilty plea. Rogers’s appointed

counsel also filed a response arguing that the appeal should be continued

because Rogers was originally granted permission to appeal and had an attorney

appointed for that purpose and because the sole issue on appeal is whether the

appear at the sentencing hearing, the trial court sentenced him to thirty years’ imprisonment in accordance with the terms of the plea bargain.

2 trial court impermissibly entered into the plea-bargain process.

These responses do not show grounds for continuing the appeal. Rule

25.2(a)(2) provides that a plea-bargaining defendant may appeal only matters

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

the trial court’s permission to appeal. Tex. R. App. P. 25.2(a)(2); Chavez v.

State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006) (requiring appellate courts to

dismiss prohibited appeal without further action, regardless of basis for appeal).

Rogers’s basis for appeal does not concern matters raised by any written motion

filed and ruled on before trial, and the trial court’s second amended certification

of appeal does not otherwise give Rogers the right to appeal. Consequently,

because Rogers has no right to appeal, we dismiss the appeal. See Tex. R.

App. P. 25.2(d), 43.2(f); Chavez, 183 S.W.3d at 680.

SUE WALKER JUSTICE

PANEL: WALKER, MCCOY, and MEIER, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: July 7, 2011