Joshua Wayne Hargraves v. State

Opinion

Opinion issued May 9, 2013

In The Court of Appeals For The First District of Texas

NO. 01-13-00194-CR NO. 01-13-00195-CR NO. 01-13-00196-CR ____________

JOSHUA WAYNE HARGRAVES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 10th District Court Galveston County, Texas Trial Court Cause Nos. 11CR0683, 11CR0684, & 11CR0685

MEMORANDUM OPINION

Pursuant to a plea-bargain agreement with the State, appellant Joshua Wayne

Hargraves pleaded guilty to two felony offenses of aggravated sexual assault of a

disabled person and one felony offense of indecency with a child by contact. See

TEX. PENAL CODE ANN. § 21.11 (West 2011), § 22.021 (West Supp. 2012). The plea-bargain in these cases entailed the State’s agreement to abandon an

enhancement paragraph for each offense in exchange for appellant’s pleas of guilty.

See Shankle v. State, 119 S.W.3d 808, 813–14 (Tex. Crim. App. 2003). The trial

court accepted appellant’s pleas and found appellant guilty of the offenses. The

trial court then sentenced appellant to confinement for 50 years in the Institutional

Division of the Texas Department of Criminal Justice for each offense of

aggravated sexual assault and for 20 years in the Institutional Division of the Texas

Department of Criminal Justice for the offense of indecency with a child by contact,

and ordered that the sentences run concurrently. Appellant has filed notices of

appeal. We dismiss the appeals.

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. R. APP. P. 25.2(a)(2). A charge-bargain, like

that entered into by the appellant and the State in these cases, where the defendant

agrees to plead guilty in exchange for the prosecutor bringing lesser charges or

agreeing to remove enhancements, is a plea-bargain under Texas Rule of Appellate

Procedure 25.2. See Shankle, 119 S.W.3d at 813–14. 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).

2 Here, the trial court’s certifications are included in the record on appeal. See

id. The trial court’s certifications indicate that these are plea bargain cases and the

appellant has no right of appeal. See TEX. R. APP. P. 25.2(a)(2). The record

supports that appellant has no right of appeal. See Dears v. State, 154 S.W.3d 610,

615 (Tex. Crim. App. 2005). Because appellant has no right of appeal, we must

dismiss these appeals. 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 reinstate and dismiss the appeals for want of jurisdiction.

We dismiss all pending motions as moot.

PER CURIAM

Panel consists of Justices Jennings, Bland, and Massengale.

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