Nuur Ahmed v. State

Opinion

Opinion issued June 27, 2013

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-12-00059-CR ——————————— NUUR AHMED, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 184th District Court Harris County, Texas Trial Court Cause No. 1282561

MEMORANDUM OPINION

A grand jury returned a true bill of indictment against appellant, Nuur

Ahmed, for the felony offense of aggravated robbery.1 In exchange for the State’s

1 See TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2011). agreement to reduce the charge and to dismiss another indictment pending against

him, Ahmed pleaded guilty to the lesser-included offense of aggravated assault

with a deadly weapon.2 The trial court found Ahmed guilty and sentenced him to

confinement for seventeen years. Ahmed has filed a notice of appeal. We dismiss

the appeal.

In a plea-bargained case, a defendant may only appeal those matters that

were raised by written motion filed and ruled on before trial or after obtaining the

trial court’s permission to appeal. TEX. CODE CRIM. PROC. ANN. art. 44.02 (West

2006); TEX. R. APP. P. 25.2(a)(2). 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).

Here, the clerk’s record contains one certification indicating both that this is

and is not a plea-bargain case, a second certification indicating that this is not a

plea-bargain case, and a judgment indicating that the terms of the plea bargain

were “without an agreed recommendation – State reduced from a 1st degree

felony.” The record further contains a document styled as a “waiver of

constitutional rights, agreement to stipulate, and judicial confession,” which

indicates that the State moved to reduce the charge to aggravated assault, that the

case was without an agreed recommendation on punishment from the State, and

2 See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011).

2 that Ahmed waived his right to appeal if the trial court accepted “the foregoing

plea bargain agreement.” The document does not, however, indicate whether the

State moved to reduce the charge in exchange for Ahmed’s guilty plea, nor does it

mention any other pending charges against Ahmed. As a result, we abated the case

for the trial court to resolve the ambiguity in the record, by determining whether

this case involves a charge-bargain agreement.

After holding a hearing on our abatement order, the trial court found that the

State moved to dismiss a second aggravated assault charge against Ahmed in

exchange for his guilty plea to the offense of aggravated assault in this case and

that Ahmed’s “plea of guilty was made in exchange for the State’s agreement to

reduce the charges against him.” The trial court then executed a certification of

appeal stating that this is a plea-bargained case and Ahmed has no right of appeal.

See TEX. R. APP. P. 25.2(a)(2). The record supports the trial court’s certification.3

See Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005); Shankle v. State,

119 S.W.3d 808, 813–14 (Tex. Crim. App. 2003). Because Ahmed has no right of

appeal, we must dismiss this appeal. See Chavez v. State, 183 S.W.3d 675, 680

(Tex. Crim. App. 2006).

3 An affidavit of Ahmed’s trial counsel, offered by the State and admitted without objection, specifically states: “Through plea bargaining, I was able to get the charge reduced from aggravated robbery to aggravated assault” and “[a] second charge of aggravated assault was dismissed as part of the plea agreement.” 3 Accordingly, we reinstate this case and dismiss this appeal for want of

jurisdiction. We dismiss all pending motions as moot.

PER CURIAM

Panel consists of Justices Jennings, Brown, and Huddle.

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