Harold Wayne Wolfenbarger III v. State

• Court: Court of Appeals of Texas
• Decided: August 10, 2006
• Docket: 14-06-00277-CR
• Status: Published

Opinion

Dismissed and Memorandum Opinion filed August 10, 2006

Dismissed and Memorandum Opinion filed August 10, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-06-00277-CR

HAROLD WAYNE WOLFENBARGER, III, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 1061210

M E M O R A N D U M   O P I N I O N

Appellant entered a guilty plea to retaliation.  In accordance with the terms of a plea bargain agreement with the State, the trial court sentenced appellant on March 14, 2006, to confinement for two years in the Institutional Division of the Texas Department of Criminal Justice.  The trial court entered a certification of the defendant=s right to appeal in which the court certified that this is a plea-bargain case, and the defendant has no right of appeal.  See Tex. R. App. P. 25.2(a)(2).  We dismiss the appeal. 

On March 22, 2006, appellant filed a motion for new trial asserting that his plea had not been entered voluntarily.  The trial court denied the motion on March 24, 2006.  That day, appellant filed a timely notice of appeal, with the notation that appellant intended to appeal the denial of his motion for new trial.  The trial court then entered a new certification of the defendant=s right to appeal in which the court certified that this is NOT a plea-bargain case, and the defendant has the right of appeal. 

The clerk=s record containing both of the trial court=s certifications was filed in this court on July 11, 2006.  See Tex. R. App. P. 25.2(d).  The record supports the trial court=s certification that appellant has no right of appeal.  See Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005).  A ruling on a motion for new trial is not a separately appealable order.  Because the record does not demonstrate that appellant seeks to appeal pretrial rulings or he has obtained the trial court=s permission to appeal, appellant has no right to appeal from a plea bargain case.  See Tex. R. App. P. 25.2(a)(2);  see also Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006) (holding that court of appeals must dismiss prohibited appeal after ascertaining whether appellant who plea‑bargained is permitted to appeal by Rule 25.2(a)(2)). 

Accordingly, we dismiss the appeal. 

PER CURIAM

Judgment rendered and Memorandum Opinion filed August 10, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).