Noel Gonzalez v. State

• Court: Court of Appeals of Texas
• Decided: February 6, 2015
• Docket: 13-13-00327-CR
• Status: Published

Opinion

NUMBER 13-13-00327-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

NOEL GONZALEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee. ____________________________________________________________

On appeal from the 103rd District Court of Cameron County, Texas. ____________________________________________________________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza Memorandum Opinion Per Curiam Appellant, Noel Gonzalez, filed a notice of appeal in this Court on June 14, 2013.

On June 27, 2013, the trial court certified that appellant waived his right to appeal. See

TEX. R. APP. P. 25.2(a)(2). On June 28, 2013, this Court notified appellant’s prior counsel

of the trial court’s certification and ordered counsel to: (1) review the record; (2) determine

whether appellant has a right to appeal; and (3) forward to this Court by letter, counsel’s findings as to whether appellant has a right to appeal and/or advise this Court as to the

existence of any amended certification. We further ordered counsel to file a motion with

this Court within thirty days of receipt of the notice, “identifying and explaining substantive

reasons why appellant has a right to appeal” if appellant’s counsel determined that

appellant had the right to appeal. See TEX. R. APP. P. 44.3; 44.4. No response was

received from appellant’s counsel. On September 3, 2013, we abated the appeal and

remanded the case to the trial court for a hearing to determine why counsel had failed to

comply with this Court’s June 28, 2013 order (the “44.3 Order”). On November 7, 2013,

appellant’s counsel filed “Counsel’s Response to Order of the [Thirteenth] Court of

Appeals Regarding Abatement” stating that counsel wished to continue representing

appellant and that counsel could file a brief within sixty days. Counsel’s response does

not establish that the trial court’s certification currently on file is incorrect or that appellant

otherwise has a right to appeal.

Following the abatement, on November 7, 2013, new appellate counsel filed an

appearance of counsel for appellant, a response to the abatement order, and a motion

for leave to file a supplemental response once the record is complete, specifically the

reporter’s record of the hearing on the motion for new trial. Again, this response does not

establish that the trial court’s certification currently on file is incorrect or that appellant

On February 14, 2014, the reporter’s record was filed and the cause reinstated.

The Court granted appellant’s motion for extension of time to comply with the 44.3 Order

by filing a supplemental response by March 24, 2014. No response to the Court’s 44.3

Order was received. Thus, on April 15, 2014, we abated the case and remanded the

2 case to the trial court for a hearing to determine why counsel has failed to comply with

this Court’s 44.3 Order.

On June 27, 2014, the trial court held a hearing. Counsel’s statements at the

hearing do not establish that the certification currently on file with this Court is incorrect

or that appellant otherwise has a right to appeal.1 On September 4, 2014, we reinstated

the case and gave counsel thirty days to respond to our 44.3 Order and to explain why

the trial court’s certification is incorrect, if it is. Counsel requested that we extend the due

date until October 13, 2014, and we granted that request. Counsel has not filed a

response.

The Texas Rules of Appellate Procedure provide that an appeal must be dismissed

if the trial court’s certification does not show that the defendant has the right to appeal.

TEX. R. APP. P. 25.2(d); see id. R. 37.1, 44.3, 44.4. Moreover, we have reviewed the

record and there is nothing showing that the trial court’s certification currently on file is

incorrect or that appellant otherwise has the right to appeal.2 See TEX. R APP. P.

25.2(a)(2) (providing that a defendant pleading guilty pursuant to a plea agreement has

a right to appeal only matters raised by written motion filed and ruled on before trial if the

punishment imposed by the trial court does not exceed the punishment recommended by

1 Instead, at the hearing, counsel argued that the record was incomplete; therefore, he could not determine whether appellant had a right to appeal and could not respond to this Court’s 44.3 Order. The trial court stated that appellant had no right to appeal because he pleaded guilty pursuant to a plea agreement with the State. However, the trial court granted counsel’s request for a complete record. 2 Pursuant to a plea agreement with the State, appellant pleaded guilty to three counts of aggravated sexual assault of a child. The trial court followed the State’s recommendation on punishment and assessed the agreed-upon twelve-year sentence. At the plea hearing, the trial court admonished appellant orally and in writing that he was waiving his right to an appeal by pleading guilty.

Although appellant filed several pretrial motions, the trial court did not rule on any of those motions before appellant pleaded guilty. Also, at a post-trial hearing, the trial court stated that it has not and would not grant appellant permission to appeal this case.

3 the State and agreed upon by the defendant); 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.”); Cooper

v. State, 45 S.W.3d 77, 77 (Tex. Crim. App. 2001) (concluding that rule 25.2(b) forbids a

plea bargaining defendant from appealing the voluntariness of his plea); Escochea v.

State, 139 S.W.3d 67, 75 (Tex. App.—Corpus Christi 2004, no pet.) (stating that the

appellant “waived any appeal of the voluntariness of his plea [and that he waived any

claim of ineffective assistance] when he pleaded guilty to a felony pursuant to an agreed

punishment recommendation”). Accordingly, we must DISMISS this appeal.

PER CURIAM

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

Delivered and filed the 5th day of February, 2015.