Lawrence Thomas Daughtrey, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: August 21, 2008
• Docket: 13-06-00417-CR
• Status: Published

Opinion

NUMBER 13-06-00417-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

LAWRENCE THOMAS DAUGHTREY JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 24th District Court of Victoria County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Yañez and Benavides Memorandum Opinion by Chief Justice Valdez

Lawrence Thomas Daughtrey, Jr., pleaded guilty to the offenses of aggravated

assault, see TEX . PENAL CODE ANN . § 22.02 (Vernon Supp. 2007), and burglary of a

habitation with intent to commit sexual assault, see id. § 30.02(a)(1) (Vernon 2003). The

trial court deferred adjudication of guilt and placed Daughtrey on probation in accordance with a plea bargain agreement.1 The trial court ultimately adjudicated guilt, sentencing

Daughtrey to fifteen years’ confinement in the Texas Department of Criminal Justice –

Institutional Division for each offense, set to run concurrently, in accordance with a second

plea bargain agreement. The trial court certified that this was not a plea bargain case and

that Daughtrey had the right to appeal.2

However, the record reflects that at the adjudication of guilt hearing, Daughtrey and

the State entered into a second plea bargain agreement regarding the length of his

sentence. In a plea-bargain case in which the punishment conforms with the plea

agreement, a defendant may only appeal those matters that were raised by written motion

filed and ruled upon before trial unless the defendant obtains the trial court’s permission

to appeal. See TEX . R. APP. P. 25.2(a)(2); Hargesheimer v. State, 182 S.W.3d 906, 911

n.4 (Tex. Crim. App. 2006); Barcenas v. State, 137 S.W.3d 865, 865-66 (Tex.

App.–Houston [1st Dist.] 2004, no pet.). There are no written motions in the record

reflecting that any pretrial issues were decided adversely to Daughtrey. The record does

not reflect Daughtrey requested and obtained the trial court’s permission to appeal. The

judgment reflects that appellant was sentenced to fifteen years for each offense, to run

concurrently, as the parties agreed. 1 Pursuant to this plea bargain, Daughtrey was placed on deferred adjudication for a period of ten years.

2 The State used separate indictm ents to charge appellant with these offenses. As such, this Court assigned a separate cause num ber for each offense: 13-06-0418-CR for the aggravated assault offense and 13-06-0417-CR for the burglary of a habitation with intent to com m it sexual assault offense. This Court, however, in a per curiam opinion, sum m arily denied appellant relief on the aggravated assault offense (13-06- 0418-CR), noting that “an appeal m ust be dism issed if the trial court’s certification does not show that the defendant has the right of appeal.” See Daughtrey v. State, No. 13-06-00418-CR, 2007 Tex. App. LEXIS 9008, at *1-2 (Tex. App.–Corpus Christi Nov. 15, 2007, pet. ref’d) (m em . op., not designation for publication). The focus of this opinion, therefore, is with regard to the burglary of a habitation with intent to com m it sexual assault offense.

2 The trial court’s certification that this was not a plea agreement, and of Daughtrey’s

right to appeal, conflicts with the record. See Waters v. State, 124 S.W.3d 825, 826 (Tex.

App.–Houston [14th Dist.] 2003, pet. ref’d). Where the trial court’s certification erroneously

states there is a right to appeal and the record shows there is no right, the appeal may be

dismissed without obtaining an amended certification. See Barcenas, 137 S.W.3d at 866.

The appeal is dismissed for want of jurisdiction.

APPEAL DISMISSED.

________________________ ROGELIO VALDEZ Chief Justice Do not publish. TEX . R. APP. P. 47.2(b). Memorandum Opinion delivered and filed this the 21st day of August, 2008.