Joseph Martin Vela v. State

Opinion

Opinion issued April 11, 2013

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-12-00889-CR NO. 01-12-00890-CR ——————————— JOSEPH MARTIN VELA, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court Harris County, Texas Trial Court Cause Nos. 1327570 and 1353262

MEMORANDUM OPINION ON REHEARING

On March 5, 2013, we granted the motion by appellant Joseph Martin Vela

to dismiss the appeals in cause numbers 01-12-00889-CR and 01-12-00890-CR.

On March 22, 2013, appellant filed a pro se motion for rehearing, seeking to reinstate his appeals, which we forwarded to appellant’s counsel. See TEX. R. APP.

P. 49.1. We deny the motion for rehearing, but withdraw our March 5, 2013

opinion and judgments. We issue this opinion and these judgments in their stead.

In appellate cause number 01-12-00889-CR (trial court cause number

1327570), appellant pleaded guilty to the offense of aggravated assault with a

deadly weapon. In accordance with appellant’s plea agreement with the State, the

trial court deferred adjudication and placed appellant on community supervision

for five years, with a $500 fine. The State later moved for adjudication. The

record reflects that appellant and his attorney signed a stipulation of evidence and

judicial confession, in which appellant pleaded “true” to the allegations in the

State’s motion to adjudicate. The document contains an agreement that the State

would recommend punishment of confinement for eight years and a $500 fine.

Appellant initialed the “Waiver of Appeal,” which states, “As part of my

agreement with the prosecutor to plead true, I agree to waive any right to appeal I

may have concerning any issue or claim in this case, including my plea of true or

admission of guilt.” The trial court found the State’s allegations true, adjudicated

appellant guilty of the underlying offense, and in accordance with appellant’s

agreement with the State, assessed punishment of confinement for eight years and

a $500 fine. The trial court entered an affirmative finding that appellant used or

2 exhibited a deadly weapon, namely, a hammer. The trial court certified that

appellant waived the right of appeal.

When a defendant waives his right of appeal as part of an agreement on

sentencing and the agreement is followed by the trial court, his waiver is made

knowingly, intelligently, and voluntarily, and he may not appeal any matters unless

the trial court first grants permission. See Ex parte Broadway, 301 S.W.3d 694,

697–99 (Tex. Crim. App. 2009); Blanco v. State, 18 S.W.3d 218, 219–20 (Tex.

Crim. App. 2000). The record shows that the trial court did not give its permission

to appeal; rather, it certified that appellant waived the right of appeal.

In appellate cause number 01-12-00890-CR (trial court cause number

1353262), appellant pleaded guilty to the offense of attempted sexual assault. The

trial court found appellant guilty and, in accordance with appellant’s plea

agreement with the State, assessed punishment of confinement for eight years, to

run concurrently. The trial court certified that the case is a plea-bargain case and

that appellant has no right of appeal.

The trial court’s certification that appellant has no right of appeal is

supported by the record. See Dears v. State, 154 S.W.3d 610, 614–15 (Tex. Crim.

App. 2005). There were no matters raised by appellant in a written motion filed

and ruled on before trial, and the trial court has not granted permission to appeal.

See TEX. R. APP. P. 25.2(d).

3 When, as here, a certification showing that the appellant has the right of

appeal has not been made part of the record, we must dismiss the appeal. See TEX.

R. APP. P. 25.2(d). Because we lack jurisdiction to hear these appeals, we must

dismiss the appeals. See Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App.

2006) (stating that appeal must be dismissed “without further action, regardless of

the basis for the appeal” if the trial court’s certification shows there is no right to

appeal).

Appellant acknowledges on rehearing that he has no right of appeal in these

cases; however, he contends that we should take jurisdiction of the appeals because

his pleas were involuntary. Appellant contends that his counsel was ineffective

because, inter alia, counsel failed to investigate and raise the issue of appellant’s

mental competency to stand trial.

Appellant cannot raise the voluntariness of his plea or a claim of ineffective

assistance of counsel on direct appeal, absent the trial court’s permission. See

Cooper v. State, 45 S.W.3d 77, 81 (Tex. Crim. App. 2001) (holding that

voluntariness of guilty plea may not be raised on appeal from plea-bargained

felony conviction); Estrada v. State, 149 S.W.3d 280, 283 (Tex. App.—Houston

[1st Dist.] 2004, pet. ref’d) (concluding that claim of ineffective assistance of

counsel may not be raised in appeal from plea-bargained case, unless authorized by

trial court); see e.g., Parras v. State, No. 01-10-00825-CR, 2011 WL 1103147, at

4 *1 (Tex. App.—Houston [1st Dist.] Aug. 24, 2011, pet. ref’d) (not designated for

publication) (dismissing appeal in plea-bargain case in which appellant asserted

that his plea was involuntary because he was on medication and thought he was

signing to purchase a house). 1

We dismiss the appeals for lack of jurisdiction. We dismiss any other

pending motions as moot.

PER CURIAM

Panel consists of Justices Jennings, Bland, and Massengale.

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

1 Appellant may complain that his plea was involuntary on the basis of mental health issues in an application for writ of habeas corpus. See Bone v. State, 77 S.W.3d 828, 837 n.30 (Tex. Crim. App. 2002); Thompson v. State, 9 S.W.3d 808, 814–15 (Tex. Crim. App. 1999); see e.g., Ex parte Powell, No. WR–70976–01, 2008 WL 5181705, at *2 (Tex. Crim. App. Dec. 10, 2008) (order, not designated for publication) (holding petition for habeas relief in abeyance until trial court resolved fact issues concerning whether applicant’s plea was involuntary because he was schizophrenic and was taking medication, which impeded his understanding of court proceedings when he entered his plea, and whether counsel failed to adequately investigate his mental competency). 5