Kelvin Benton v. State ( 2016 )

Opinion issued August 4, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-16-00351-CR
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KELVIN BENTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Case No. 1486410
MEMORANDUM OPINION
Appellant, Kelvin Benton, pleaded guilty to the third-degree felony offense of
evading arrest or detention with a vehicle, which was enhanced to a second-degree
felony offense because he had one prior felony conviction. See TEX. PENAL CODE
ANN. §§ 12.42(a), 38.04(a)(2)(A) (West Supp. 2015). Pursuant to a plea bargain,
the State agreed to recommend that appellant’s punishment be assessed at fifteen
years’ confinement. In accordance with the terms of his plea bargain with the State,
the trial court found appellant guilty and assessed his punishment at fifteen years’
confinement. See id. § 12.33(a) (West Supp. 2015). The trial court certified that
this was a plea-bargain case and that 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 in the trial court,
contending, among other things, that his trial counsel was ineffective. See TEX. R.
APP. P. 25.2(a)(2)(A), 26.2(a)(1). Appellant also filed pro se letter-motions for the
appointment of appellate counsel in this Court. We dismiss this appeal for want of
jurisdiction and dismiss the motions as moot.
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 Supp. 2015);
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 is included in the notice of appeal and states
that this is a plea-bargain case and that appellant has no right of appeal, and the trial
court 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 clerk’s record, filed in this Court,
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supports the trial court’s certification. See Dears, 154 S.W.3d at 615. Because
appellant has no right of appeal, we must dismiss this appeal without further action.
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), 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 Higley and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
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