Victor Cano v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 18, 2022
• Docket: 05-22-00527-CR
• Status: Published

Opinion

Dismiss and Opinion Filed August 18, 2022

In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00527-CR

VICTOR CANO, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 7 Dallas County, Texas Trial Court Cause No. F21-53813-Y

MEMORANDUM OPINION Before Justices Partida-Kipness, Pedersen, III, and Nowell Opinion by Justice Nowell Victor Cano was indicted for assault family violence by impeding breathing

or circulation with a previous conviction, enhanced by a prior felony conviction,

making his offense punishable as a first-degree felony. On May 19, 2022, appellant

entered into a plea agreement with the State, agreeing to plead guilty and waive his

right to appeal in exchange for the State recommending a cap of 20 years

punishment. That same day, the trial court found appellant guilty as charged and

assessed punishment at 6 years in prison. The clerk’s record contains a certification of appellant’s right to appeal which states “this is not a plea-bargain case, and the

defendant has the right to appeal.”

After reviewing the clerk’s record, the Court had questions concerning its

jurisdiction and requested counsel for both parties to file a letter brief addressing

whether the Court has jurisdiction over the appeal. Appellant’s counsel did not

respond; however, the State filed a letter brief, agreeing that the Court does not have

jurisdiction.

Two basic kinds of plea bargains affect punishment: (1) sentence bargaining

and (2) charge bargaining. Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App.

2003). Sentence bargaining may be for binding or nonbinding recommendations to

the court on sentences, including a recommended cap on a sentence or the State's

agreement to drop an enhancement paragraph thereby reducing the punishment

range. See id. Charge bargaining involves questions of whether the defendant will

plead guilty to the offense that has been alleged or to a lesser or related offense and

whether the prosecutor will dismiss or refrain from bringing other charges. Id. Both

sentence bargaining and charge bargaining affect punishment and constitute plea

bargain agreements under appellate rule 25.2. See id.; TEX. R. APP. P. 25.2(a)(2).

In this case, appellant pleaded guilty in exchange for the State’s agreement to

recommend a cap of 20 years punishment. Although the plea agreement referred to

this as an “open plea” because there was no set agreement on the amount of time

appellant would serve, it is a plea bargain because the State agreed to cap

–2– punishment. See Shankle, 119 S.W.3d at 813. Therefore, the trial court’s certification

stating this is not a plea bargain is defective. See Dears v. State, 154 S.W.3d 610,

613 (Tex. Crim. App 2005) (rule 25.2 requires recitations in certificate to be true and

supported by record).

Under rule 25.2, appellant may appeal only (1) those matters raised by written

motion filed and ruled on before trial, (2) after getting the trial court’s permission to

appeal, and (3) where the specific appeal is expressly authorized by statute. See TEX.

R. APP. P. 25.2(a)(2). Here, the clerk’s record shows the only written order ruled on

before trial was an order holding the bond insufficient which, following appellant’s

conviction, is moot. Appellant did not receive the trial court’s permission to appeal,

and nothing in the record suggests there is specific statutory authorization that would

authorize an appeal in this case. Under these circumstances, we conclude we lack

We dismiss this appeal.

/Erin A. Nowell// ERIN A. NOWELL 220527f.u05 JUSTICE Do Not Publish TEX. R. APP. P. 47.2(b)

–3– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

VICTOR CANO, Appellant On Appeal from the Criminal District Court No. 7, Dallas County, Texas No. 05-22-00527-CR V. Trial Court Cause No. F21-53813-Y. Opinion delivered by Justice Nowell. THE STATE OF TEXAS, Appellee Justices Partida-Kipness and Pedersen, III participating.

Based on the Court’s opinion of this date, we DISMISS this appeal.

Judgment entered this 18th day of August, 2022.

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