William Edward Hernandez v. State

• Court: Court of Appeals of Texas
• Decided: May 5, 2015
• Docket: 01-13-00771-CR
• Status: Published

Opinion

Opinion issued May 5, 2015

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-13-00771-CR ——————————— WILLIAM EDWARD HERNANDEZ, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court Harris County, Texas Trial Court Case No. 1265866

MEMORANDUM OPINION

Pursuant to an agreement with the State that punishment be capped at

confinement for thirty years, appellant, William Edward Hernandez, pleaded guilty to the felony offense of murder.1 The trial court accepted the plea agreement and,

in accordance with the agreement with the State, assessed appellant’s punishment

at confinement for twenty-six years. The trial court certified that this is a

plea-bargained case and appellant has no right of appeal. Appellant filed a pro se

notice of appeal. We dismiss the appeal.

In a plea-bargained case, a defendant may appeal only those matters that

were raised by written motion and ruled on before trial or after obtaining the trial

court’s permission to appeal. TEX. CODE CRIM. PROC. ANN. Art. 44.02 (West

2006); TEX. R. APP. P. 25.2(a)(2). An appeal must be dismissed if a certification

showing that the defendant has a right of appeal has not been made part of the

record. TEX. R. APP. P. 25.2(d).

The clerk’s record reflects that appellant pleaded guilty in exchange for the

State’s recommendation that punishment be capped at confinement for thirty

years.2 An agreement to a recommended cap on punishment constitutes a plea

bargain. See Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003);

1 See TEX. PENAL CODE ANN. § 19.02 (West 2011). 2 The trial court’s judgment states, “Term of Plea Bargain: Without a Recommendation.” Such language does not convert the plea to an open plea when, as here, the plea was entered pursuant to an agreed sentencing cap. See Threadgill v. State, 120 SW.3d 871, 872 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (holding statement in record indicating there was no agreed recommendation did not convert proceeding into open plea when plea was entered pursuant to agreed sentencing cap).

2 Wilson v. State, 264 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.] 2007, no

pet.); Waters v. State, 124 S.W.3d 825, 826 (Tex. App.—Houston [14th Dist.]

2003, pet. ref’d). Here, the trial court’s certification is included in the record and

states that this is a plea-bargained case and appellant has no right of appeal. See

TEX. R. APP. P. 25.2(a)(2). We conclude that the record supports the trial court’s

certification. See Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005).

The trial court did not rule adversely to appellant on any pre-trial matters

and did not give appellant permission to appeal. See TEX. R. APP. P. 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) (“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.”).

Accordingly, we dismiss the appeal for want of jurisdiction. We dismiss all

pending motions as moot.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Brown and Lloyd. Do not publish. TEX. R. APP. P. 47.2(b).