Timmie Ray McDuffy v. State

• Court: Court of Appeals of Texas
• Decided: May 18, 2017
• Docket: 01-17-00125-CR
• Status: Published

Opinion

Opinion issued May 18, 2017

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-17-00125-CR ——————————— TIMMIE RAY MCDUFFY, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court Harris County, Texas Trial Court Cause No. 1523825

MEMORANDUM OPINION Appellant, Timmie Ray McDuffy, pleaded guilty to the first-degree felony

offense of possession with intent to deliver a controlled substance, namely, cocaine,

weighing more than four grams and less than 200 grams by aggregate weight,

without an agreed punishment recommendation pending a pre-sentence investigation (“PSI”) hearing.1 In exchange for appellant’s plea, the State agreed to

recommend a punishment cap of fifteen years’ confinement. At the PSI hearing, in

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

and assessed his punishment at five years’ confinement.2 The trial court certified

that this was a plea-bargain case and that appellant had no right of appeal, but

appellant timely filed a pro se notice of appeal.3 See TEX. R. APP. P. 25.2(a)(2),

26.2(a)(1). We dismiss this appeal for want of jurisdiction.

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 1977); 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, included in this Court’s records, states that

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

1 See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D), 481.115(a), (e) (West 2009). 2 See TEX. PENAL CODE ANN. § 12.32(a) (West 2009). 3 Appellant also filed a notice of appeal from the related trial court cause number 1520651, which was assigned to appellate cause number 01-17-00124-CR. Appellant’s sentence in this case was set to run concurrently to the sentence in trial court cause number 1520651. 2 did not give its permission to appeal any matters. See TEX. R. APP. P. 25.2(a)(2),

(d); Dears, 154 S.W.3d at 615. The records confirm that appellant pleaded guilty to

the first-degree felony offense of cocaine possession in exchange for the State’s

fifteen-year sentencing cap recommendation. Thus, the records support the trial

court’s certification. See Dears, 154 S.W.3d at 615; Shankle v. State, 119 S.W.3d

808, 813 (Tex. Crim. App. 2003) (noting that agreement to plead guilty in exchange

for State’s recommended “cap” on sentencing was plea bargain under Rule

25.2(a)(2)). Because appellant has no right of appeal, we must dismiss this appeal.

See Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006).

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

P. 43.2(f).

PER CURIAM Panel consists of Justices Higley, Bland, and Brown.

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