Jose Antonio Banda v. State ( 2012 )

Dismissed and Memorandum Opinion filed April 17, 2012.
In The
Fourteenth Court of Appeals
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NO. 14-12-00189-CR
NO. 14-12-00190-CR
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JOSE ANTONIO BANDA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause Nos. 1306394 & 1306395
MEMORANDUM OPINION
Appellant entered a plea of guilty to two counts of aggravated robbery with a deadly
weapon. In both cases, appellant and the State agreed that appellant's punishment would
not exceed confinement in prison for more than twenty-five (25) years. In accordance with
the terms of this agreement with the State, the trial court sentenced appellant on January 26,
2012, to confinement for twenty (20) years in the Institutional Division of the Texas
Department of Criminal Justice in each case. The sentences were ordered to run
concurrently. In both cases, appellant filed a timely, written notice of appeal. We dismiss
the appeals.
In both cases, the trial court entered a certification of the defendant's right to appeal
in which the court certified that this is a plea bargain case and the defendant has no right of
appeal. Accordingly, we have no jurisdiction over these appeals. See Tex. R. App. P.
25.2(a)(2). 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) (holding reviewing court lacked
jurisdiction where defendant pled guilty with a sentencing cap of ten years, even though
trial judge mistakenly certified defendant had right of appeal); Threadgill v. State, 120
S.W.3d 871, 872 (Tex. App.-- Houston [1st Dist.] 2003, no. pet.) (holding statement in
record indicating that there was no agreed recommendation did not convert proceeding into
an open plea where plea was entered pursuant to agreed sentencing cap); 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).
In each case, because 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). In both cases the record does not contain any pre-trial
rulings and the trial court did not grant permission to appeal.
Accordingly, we dismiss both appeals.
PER CURIAM
Panel consists of Justices Boyce, Christopher, and Jamison.
Do Not Publish - Tex. R. App. P. 47.2(b).
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