Ruben Omar Moreno v. the State of Texas

Opinion

DISMISS and Opinion Filed February 13, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00469-CR No. 05-22-00470-CR

RUBEN OMAR MORENO, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No. 1 Rockwall County, Texas Trial Court Cause Nos. CR18-2212, CR18-2213

MEMORANDUM OPINION Before Justices Carlyle, Goldstein, and Kennedy Opinion by Justice Kennedy Ruben Omar Moreno appeals his convictions for failure to identify while a

fugitive from justice (TEX. PENAL CODE ANN. § 38.02(b), (d)) and driving while

intoxicated (TEX. PENAL CODE ANN. § 49.04) (DWI). This Court lacks jurisdiction

over these appeals. Accordingly, we dismiss these appeals for want of jurisdiction.

On November 20, 2018, an information was filed in each of these cases

accusing appellant of providing a false or fictitious residence address to a peace

officer while a fugitive and of DWI. On February 10, 2022, appellant and the State

entered into a plea agreement in each case. The plea agreements provided that appellant would plead guilty to the charges and the prosecutor would recommend a

sentence of nineteen days in the county jail, which was his time served, for providing

a false address, and thirty-eight days in the county jail with nineteen days credit for

DWI. The plea agreements informed appellant that “if the trial court sets punishment

at or below this recommendation, all parties understand that no appeal is possible

without the permission of the court unless based on motions previously filed.”

Written plea admonishments advised appellant,

If the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by you and your attorney, the Court must give its permission to you before you can prosecute an appeal on any matter in the case except for matters raised by written motion filed and ruled upon prior to trial.

The trial court’s judgment in each case shows the trial court accepted appellant’s

guilty pleas and sentenced him to the recommended punishment. The trial court’s

certifications of appellant’s right of appeal state, “defendant has waived the right of

appeal.”

A defendant in a criminal case has the right of appeal as set out in the Code

of Criminal Procedure and the Rules of Appellate Procedure. See TEX. CODE CRIM.

PROC. ANN. art. 44.02. TEX. R. APP. P. 25.2(a). Rule of Appellate Procedure 25.2

provides that in “a plea-bargain case—that is, a case in which a defendant’s plea was

guilty . . . and the punishment did not exceed the punishment recommended by the

prosecutor and agreed to by the defendant,” a defendant may appeal only “those

matters that were raised by written motion filed and ruled on before trial,” “after

–2– getting the trial court’s permission to appeal,” or “where the specific appeal is

expressly authorized by statute.” TEX. R. APP. P. 25.2(a)(2). When an appellant

waives his right to appeal as part of his plea bargain agreement with the State, a

subsequent notice of appeal filed by him fails to “initiate the appellate process,”

Lundgren v. State, 434 S.W.3d 594, 599, 600 (Tex. Crim. App. 2014), ), and “no

inquiry into even possibly meritorious claims may be made,” Chavez v. State, 183

S.W.3d 675, 680 (Tex. Crim. App. 2006). When an appeal from a plea bargain is

not authorized by Rule 25.2, “[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.” Chavez, 183 S.W.3d at 680.

In each of these cases, the record shows appellant and the State agreed

appellant would plead guilty in exchange for a specific recommended punishment.

The documents appellant signed admonished appellant he would have no right of

appeal if the trial court followed the punishment recommendations except for

matters raised by written motion and ruled on before trial or if the trial court granted

appellant permission to appeal. The clerk’s record does not contain any motion ruled

on before trial, and the certifications of appellant’s right of appeal show the trial

court did not grant appellant permission to appeal. Therefore, under Rule 25.2(a),

appellant has no right of appeal. See Chavez, 183 S.W.3d at 680.

–3– Rule 25.2(d) also requires the court of appeals to dismiss the appeal if there is

no certification from the trial court showing the defendant has the right of appeal.

TEX. R. APP. P. 25.2(d). The certifications affirmatively show appellant did not have

the right to appeal, and the certifications are supported by the record. Therefore, we

must dismiss the appeals. Id.; see Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim.

App. 2005).

We requested appellant and the State to file letter briefs addressing the

jurisdictional issue. Appellant’s counsel and the State responded that appellant has

no right of appeal.

We conclude we lack jurisdiction over these appeals from plea-bargained

convictions. We dismiss these appeals for want of jurisdiction.

/Nancy Kennedy/ NANCY KENNEDY Do Not Publish JUSTICE TEX. R. APP. P. 47.2(b) 220469F.U05

–4– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

RUBEN OMAR MORENO, On Appeal from the County Court at Appellant Law No. 1, Rockwall County, Texas Trial Court Cause No. CR18-2212. No. 05-22-00469-CR V. Opinion delivered by Justice Kennedy. Justices Carlyle and THE STATE OF TEXAS, Appellee Goldstein participating.

Based on the Court’s opinion of this date, the appeal is DISMISSED for want of jurisdiction.

Judgment entered February 13, 2023

–5– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

RUBEN OMAR MORENO, On Appeal from the County Court at Appellant Law No. 1, Rockwall County, Texas Trial Court Cause No. CR18-2213. No. 05-22-00470-CR V. Opinion delivered by Justice Kennedy. Justices Carlyle and THE STATE OF TEXAS, Appellee Goldstein participating.

Based on the Court’s opinion of this date, the appeal is DISMISSED for want of jurisdiction.

–6–