D'Angelo Cordell Middlebrooks v. State ( 2016 )

Opinion issued February 9, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00627-CR
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D’ANGELO CORDELL MIDDLEBROOKS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Case No. 1440238
MEMORANDUM OPINION
Pursuant to an agreement with the State that a pre-sentencing (“PSI”) hearing
be conducted and that punishment be capped at confinement for thirty years,
appellant, D’Angelo Cordell Middlebrooks, pleaded guilty to the first-degree felony
offense of aggravated sexual assault. See TEX. PENAL CODE ANN. §§
22.021(a)(1)(A)(iii), (2)(A)(ii), (e) (West Supp. 2015). Following a PSI hearing, the
trial court accepted the plea agreement and assessed appellant’s punishment at
confinement for twenty-six years on May 15, 2015. See TEX. PENAL CODE ANN. §
12.32(a). The trial court certified that this is a plea-bargained case and appellant has
no right of appeal. See TEX. R. APP. P. 25.2(a)(2).
Nevertheless, appellant timely filed a pro se notice of appeal, contending that
his guilty plea was involuntary due to alleged ineffective assistance of trial counsel.
See TEX. R. APP. P. 26.2(a)(1). The trial court appointed appellate counsel for
appellant, who filed a letter with the Clerk of this Court informing the Court that the
trial court’s certification indicates that this is a plea-bargained case and appellant has
no right of appeal, and a motion for extension of time to file a brief in the event this
Court does not dismiss this appeal. We dismiss this appeal for want of jurisdiction
and dismiss the motion as moot.
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). In a plea-bargain
case—where a defendant pleaded guilty and the punishment did not exceed the
punishment recommended by the prosecutor and agreed to by the defendant—as
here, 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.
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TEX. CODE CRIM. PROC. ANN. art. 44.02 (West Supp. 2015); TEX. R. APP. P.
25.2(a)(2).
Here, the trial court’s certification, which is included in the clerk’s record,
states that this is a plea-bargained case and that appellant has no right of appeal. See
TEX. R. APP. P. 25.2(a)(2), (d). The clerk’s record reflects that appellant pleaded
guilty in exchange for the State’s recommendation that a PSI hearing be held and
that punishment be capped at confinement for thirty years. An agreement to a
recommended cap on punishment constitutes a plea bargain for purposes of Texas
Rule of Appellate Procedure 25.2(a)(2). See Shankle v. State, 119 S.W.3d 808, 813
(Tex. Crim. App. 2003) (stating sentence-bargaining may be for recommendations
to the court on sentences, including recommended “cap” on sentencing); 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).
The reporter’s record for the PSI hearing filed in this Court reflects that the
trial court held a PSI hearing after appellant had pleaded guilty and after the State
had commenced trial, and that the plea-bargain agreement was that appellant would
plead guilty to the indictment and agree to have a PSI hearing with the court with a
prison-sentence cap of thirty years. The judgment of conviction in the clerk’s record
confirms that the trial court accepted the plea-bargain agreement because the trial
court assessed appellant’s punishment at twenty-six years’ confinement. The
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judgment also includes a standard waiver of appellant’s right of appeal if the trial
court accepted the plea-bargain agreement.
Also, the trial court did not rule adversely to appellant on any pre-trial matters
and did not give appellant permission to appeal. Thus, the appellate record supports
the trial court’s certification that appellant has no right of appeal. See TEX. R. APP.
P. 25.2(a)(2); Dears, 154 S.W.3d at 615. 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.”).
CONCLUSION
Accordingly, we dismiss this appeal for want of jurisdiction. See TEX. R. APP.
P. 43.2(f). We dismiss all pending motions as moot.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Keyes and Higley.
Do not publish. TEX. R. APP. P. 47.2(b).
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