Osmin Enrique Hernandez v. State

• Court: Court of Appeals of Texas
• Decided: June 23, 2016
• Docket: 01-16-00116-CR
• Status: Published

Opinion

Opinion issued June 23, 2016

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-16-00116-CR ——————————— OSMIN ENRIQUE HERNANDEZ, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court Harris County, Texas Trial Court Case No. 1401404

MEMORANDUM OPINION Appellant, Osmin Enrique Hernandez, pleaded guilty to the first-degree

felony offense of murder. See TEX. PENAL CODE ANN. §§ 19.02(b)(3), (c) (West

Supp. 2015). Pursuant to a plea bargain, the State agreed to reduce the original

charge of capital murder to murder with a deadly weapon, with the agreed

recommendation that appellant’s punishment be assessed at forty years’ confinement. See id. §§ 19.03(a)(2), (b) (West Supp. 2015). In accordance with the

terms of his plea bargain with the State, the trial court found appellant guilty of the

reduced charge of murder with a deadly weapon, and assessed his punishment at

forty years’ confinement. See id. § 12.32(a) (West Supp. 2015). The trial court

certified that this was a plea-bargain case and that appellant has no right of appeal.

See TEX. R. APP. P. 25.2(a)(2).

Nevertheless, appellant timely filed a pro se notice of appeal in the trial court,

contending, among other things, that the trial court granted him permission to appeal

any rulings on pretrial motions. See TEX. R. APP. P. 25.2(a)(2)(A), 26.2(a)(1).

Appellant also filed pro se letter-motions for an extension of time to file his appellate

brief in this Court. We dismiss this appeal for want of jurisdiction and dismiss the

motions as moot.

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. CODE CRIM. PROC. ANN. art. 44.02 (West Supp. 2015);

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); see Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005).

Here, the trial court’s certification is included in the notice of appeal and states

that this is a plea-bargain case and that appellant has no right of appeal, and the trial

2 court did not give its permission to appeal any matters, including any rulings on

pretrial motions. See TEX. R. APP. P. 25.2(a)(2), (d); Dears, 154 S.W.3d at 615. The

clerk’s and reporter’s records, filed in this Court, support the trial court’s

certification. See Dears, 154 S.W.3d at 615. Because appellant has no right of

appeal, we must dismiss this appeal without further action. 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), must dismiss a prohibited appeal without further action,

regardless of the basis for the appeal.”).

CONCLUSION Accordingly, we dismiss this appeal for want of jurisdiction. See TEX. R. APP.

P. 43.2(f). We dismiss all pending motions as moot.

PER CURIAM Panel consists of Justices Higley, Bland, and Massengale. Do not publish. TEX. R. APP. P. 47.2(b).