Manual v. Perales v. State ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00110-CR
___________________________
MANUAL V. PERALES, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 297th District Court
Tarrant County, Texas
Trial Court No. 1527559D
Before Birdwell, Bassel, and Womack, JJ.
Per Curiam Memorandum Opinion
MEMORANDUM OPINION
Appellant Manual V. Perales was charged with burglary of a habitation, a
second-degree felony. See Tex. Penal Code Ann. § 30.02(c)(2). The indictment
contained an enhancement paragraph alleging that appellant had previously been
convicted of two felonies. See id. § 12.42(d). The State waived one of the enhancement
allegations. This waiver lowered the minimum punishment from 25 years’
confinement to 5 years’ confinement, but the maximum punishment remained
confinement for 99 years or life. See id. §§ 12.32(a), 12.42(b), (d). Appellant signed
written plea admonishments, in which the plea recommendation was listed as “open
plea – plea to 1st prior case” and in which appellant agreed to waive his right of
appeal. Accordingly, appellant pleaded guilty to the burglary charge––without an
agreed recommendation on punishment––and also pleaded true to the only remaining
enhancement allegation. The trial court found appellant guilty, found the
enhancement allegation true, and sentenced appellant to 20 years’ confinement.
The trial court’s original certification of appellant’s right of appeal stated that
this is not a plea-bargain case and that appellant has the right of appeal. But because it
appeared that appellant may have pleaded guilty in exchange for the State’s agreement
to waive the second enhancement allegation in the indictment, we sent a letter
indicating that it appeared to this court that this is a plea-bargain case. We asked the
parties to provide this court with an amended certification or an explanation of why
an amended certification could not be made part of the appellate record. In response,
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the trial court signed an amended certification indicating that this is a plea-bargain
case, and appellant does not have the right of appeal. Appellant and his trial counsel
both signed the amended certification. After we received the amended certification,
we sent appellant and his appointed appellate counsel a second letter warning that
unless we received a response showing grounds for continuing the appeal, we would
dismiss it. We have not received a response.
In Jones v. State, the court of criminal appeals held that an appellant’s agreement
to plead guilty to the charged offense, to plead true to one of two enhancement
allegations, and to waive the right of appeal––in exchange for the State’s waiver of the
second enhancement allegation but without an agreed recommendation on
punishment––although resulting from a “plea agreement,” was not a “plea bargain
case” as contemplated by rule 25.2(a)(2). 488 S.W.3d 801, 808 (Tex. Crim. App. 2016);
see also Tex. Code Crim. Proc. Ann. art. 44.02; Tex. R. App. P. 25.2(a)(2). But the court
also held that Jones had validly waived his right of appeal as part of his agreement
with the State. Jones, 488 S.W.3d at 808.
In this case, the amended certification, together with the lack of response to
our inquiries, supports the conclusion that appellant made his plea and agreed to
waive his right of appeal in exchange for the State’s waiver of the second
enhancement allegation. Therefore, in accordance with the court of criminal appeals’s
holding in Jones, we dismiss this appeal. Id.; Dears v. State, 154 S.W.3d 610, 614–15
(Tex. Crim. App. 2005).
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Per Curiam
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: August 22, 2019
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