Spivey IV, James Dewitt v. State

• Court: Court of Appeals of Texas
• Decided: January 15, 2004
• Docket: 14-03-01074-CR
• Status: Published

Opinion

Dismissed and Memorandum Opinion filed January 15, 2004

Dismissed and Memorandum Opinion filed January 15, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-01074-CR

JAMES DEWITT SPIVEY, IV, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 937,910

M E M O R A N D U M   O P I N I O N

Appellant entered a guilty plea to injury to a child in accordance with a plea agreement with the State to Acap@ his punishment at thirty years= confinement.  In accordance with the terms of a plea bargain agreement, on September 23, 2003, the trial court sentenced appellant to confinement for twenty years in the Institutional Division of the Texas Department of Criminal Justice.  Appellant filed a notice of appeal.  Because appellant has no right to appeal, we dismiss. 

An agreement that the State will recommend a cap on punishment is an agreement on punishment.  See Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003); Ditto v. State, 988 S.W.2d 236, 238-39 (Tex. Crim. App. 1999); see also Threadgill v. State, 2003 WL 22311225, at * 1 (Tex. App.CHouston [1st Dist.] Oct. 9, 2003, no pet.).  Here, the punishment assessed by the trial court did not exceed the recommended cap to which appellant agreed.  Thus, this is a plea-bargained case within the meaning of Texas Rule of Appellate Procedure 25.2(a)(2). 

The trial court entered a certification of the defendant=s right to appeal in which the court certified that this is a plea bargain case, and the defendant has no right of appeal.  See Tex. R. App. P. 25.2(a)(2).  The trial court=s certification is included in the record on appeal.  See Tex. R. App. P. 25.2(d).

Accordingly, we dismiss the appeal. 

PER CURIAM

Judgment rendered and Memorandum Opinion filed January 15, 2004.

Panel consists of Justices Edelman, Frost, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).