Robert Murillo v. State ( 2012 )

Order filed July 12, 2012.
In The
Fourteenth Court of Appeals
NO. 14-11-00966-CR
ROBERT MURILLO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Cause No. 1269679
ORDER
The record reflects appellant entered a plea of guilty to aggravated robbery pursuant
to an agreement with the State that appellant’s punishment would not exceed confinement
in prison for more than fifteen (15) years. The trial court sentenced appellant to
confinement for seven (7) years in the Institutional Division of the Texas Department of
Criminal Justice.
The trial court entered a certification of the defendant’s right to appeal in which the
court certified that this is not a plea bargain case and the defendant has the right of appeal.
See Tex. R. App. P. 25.2(a)(2). However, an agreement that places a cap on punishment is
a plea bargain for purposes of Texas Rule of Appellate Procedure 25.2(a)(2). Waters v.
State, 124 S.W.3d 825, 826–27 (Tex. App.—Houston [14th Dist.] 2003, pet. ref'd); see
also 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 a
recommended “cap” on sentencing).
If, as the record suggests, appellant’s plea was made pursuant to a plea bargain, he
may appeal only matters raised by a written pre-trial motion or with the trial court’s
permission. See Tex. R. App. P. 25.2(a)(2). The record does not contain any pre-trial
rulings adverse to appellant. Moreover, a trial court’s erroneous certification that the case
is not a plea bargain case does not constitute permission to appeal. See Waters, 124
S.W.3d at 826–27.
Accordingly, we order the parties to file a response on or before July 30, 2012,
showing meritorious grounds for continuing the appeal or the court on its own motion will
consider dismissal of the appeal for want of jurisdiction.
PER CURIAM
Panel consists of Justices Frost, McCally and Busby.
2