Daniel Ortega v. State

• Court: Court of Appeals of Texas
• Decided: March 14, 2019
• Docket: 01-18-00839-CR
• Status: Published

Opinion

Opinion issued March 14, 2019

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-18-00839-CR ——————————— DANIEL ORTEGA, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 4 Harris County, Texas Trial Court Cause No. 2176152

MEMORANDUM OPINION Appellant, Daniel Ortega, pleaded guilty to the Class A misdemeanor offense

of driving while intoxicated with a blood alcohol concentration level greater than

0.15, with an agreed punishment recommendation of sixty days’ confinement in county jail, with two days credit.1 In accordance with his plea bargain with the State,

the trial court found appellant guilty and assessed his punishment at sixty days’

confinement in county jail, with two days credit, on August 9, 2018.2 The trial court

certified that this was a plea-bargained case and that appellant had no right of appeal.

See TEX. R. APP. P. 25.2(a)(2). Appellant timely filed a notice of appeal. See TEX.

R. APP. P. 26.2(a)(1). The State filed a motion to dismiss this appeal for want of

jurisdiction and, after we requested a response, the appellant filed a response

consenting to the dismissal. We agree and grant the motion to dismiss this appeal

for want of jurisdiction.

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. TEX. CODE CRIM. PROC. ANN. art. 44.02 (West 2006); TEX. R.

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

P. 25.2(d); see Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005).

Here, the trial court’s certification stated that this was a plea-bargained case

and that appellant had no right of appeal, and the trial court did not give its

1 See TEX. PEN. CODE ANN. § 49.04(a), (d) (West 2011). 2 See TEX. PENAL CODE ANN. § 12.21(2) (West 2011).

2 permission to appeal any matters. See TEX. R. APP. P. 25.2(a)(2), (d); Dears, 154

S.W.3d at 615. The clerk’s record, filed in this Court including the plea waiver,

supports the trial court’s certification. See Dears, 154 S.W.3d at 615. Because

appellant has no right of appeal, we must dismiss this 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 Rule 25.2(a)(2), must dismiss a prohibited appeal without further action,

regardless of the basis for the appeal.”).

Accordingly, we grant the State’s motion and dismiss this appeal for want of

jurisdiction. See TEX. R. APP. P. 43.2(f).

PER CURIAM Panel consists of Justices Keyes, Higley, and Landau.

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