Gustavo Ponce v. State

• Court: Court of Appeals of Texas
• Decided: January 24, 2013
• Docket: 02-12-00462-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-12-00462-CR

Gustavo Ponce § From the 432nd District Court

§ of Tarrant County (1270527D)

v. § January 24, 2013

§ Per Curiam

The State of Texas § (nfp)

JUDGMENT

This court has considered the record on appeal in this case and holds that

the appeal should be dismissed. It is ordered that the appeal is dismissed.

SECOND DISTRICT COURT OF APPEALS

PER CURIAM COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

GUSTAVO PONCE APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY

MEMORANDUM OPINION1

Appellant Gustavo Ponce attempts to appeal his third-degree felony

conviction, pursuant to a plea bargain, for evading arrest in a vehicle.2 On

June 6, 2012, appellant received written plea admonishments, waived his

constitutional and statutory rights, judicially confessed, and pled guilty. The trial

court convicted him of evading arrest in a vehicle and sentenced him to three 1 See Tex. R. App. P. 47.4. 2 See Tex. Penal Code Ann. § 38.04(a), (b)(2)(A) (West Supp. 2012).

2 years’ confinement. On the same day, the trial court signed a certification of

appellant’s right to appeal, which appellant and his trial counsel also signed. The

certification states that appellant entered into a plea bargain, has ―NO right of

appeal,‖ and has waived his right to appeal. Nonetheless, appellant brought this

appeal.

Through a letter, we notified appellant of the contents of the certification

and stated that we would dismiss the appeal unless he filed a response showing

grounds for continuing it. See Tex. R. App. P. 25.2(a)(2), (d). We have received

a response, but it does not contain appropriate grounds for continuing an appeal

from this plea-bargained case. See Tex. R. App. P. 25.2(a)(2) (stating that a

defendant who enters into a plea bargain may appeal only when the trial court

gives permission or when the appeal concerns matters raised by written motion

filed and ruled on before trial); Chavez v. State, 183 S.W.3d 675, 679–80 (Tex.

Crim. App. 2006) (concluding that a defendant must raise even a jurisdictional

issue in a pretrial motion or receive permission from the trial court that accepted

the plea bargain in order to bring the issue on appeal).3 Therefore, in

accordance with the trial court’s certification, we dismiss this appeal. See Tex.

R. App. P. 25.2(d) (―The appeal must be dismissed if a certification that shows

3 In appellant’s response to our letter, without addressing the language of rule 25.2(a)(2), he complains about issues, such as the voluntariness of his plea, that were not raised by a written motion before trial and are therefore not appealable. See Cooper v. State, 45 S.W.3d 77, 83 (Tex. Crim. App. 2001); Turley v. State, 242 S.W.3d 178, 179 & n.4 (Tex. App.—Fort Worth 2007, no pet.) (mem. op.).

3 the defendant has the right of appeal has not been made part of the record under

these rules.‖), 43.2(f); Chavez, 183 S.W.3d at 680; Jackson v. State, 168 S.W.3d

239, 243 (Tex. App.—Fort Worth 2005, no pet.).

PER CURIAM

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

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

DELIVERED: January 24, 2013