Timmie Ray McDuffy v. State ( 2017 )

Opinion issued May 18, 2017
In The
Court of Appeals
For The
First District of Texas
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NO. 01-17-00125-CR
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TIMMIE RAY MCDUFFY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Cause No. 1523825
MEMORANDUM OPINION
Appellant, Timmie Ray McDuffy, pleaded guilty to the first-degree felony
offense of possession with intent to deliver a controlled substance, namely, cocaine,
weighing more than four grams and less than 200 grams by aggregate weight,
without an agreed punishment recommendation pending a pre-sentence
investigation (“PSI”) hearing.1 In exchange for appellant’s plea, the State agreed to
recommend a punishment cap of fifteen years’ confinement. At the PSI hearing, in
accordance with his plea bargain with the State, the trial court found appellant guilty
and assessed his punishment at five years’ confinement.2 The trial court certified
that this was a plea-bargain case and that appellant had no right of appeal, but
appellant timely filed a pro se notice of appeal.3 See TEX. R. APP. P. 25.2(a)(2),
26.2(a)(1). We dismiss this appeal for want of jurisdiction.
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 1977); 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, included in this Court’s records, states that
this is a plea-bargain case and that appellant has no right of appeal, and the trial court
1
See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D), 481.115(a), (e) (West
2009).
2
See TEX. PENAL CODE ANN. § 12.32(a) (West 2009).
3
Appellant also filed a notice of appeal from the related trial court cause number
1520651, which was assigned to appellate cause number 01-17-00124-CR.
Appellant’s sentence in this case was set to run concurrently to the sentence in trial
court cause number 1520651.
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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 records confirm that appellant pleaded guilty to
the first-degree felony offense of cocaine possession in exchange for the State’s
fifteen-year sentencing cap recommendation. Thus, the records support the trial
court’s certification. See Dears, 154 S.W.3d at 615; Shankle v. State, 119 S.W.3d
808, 813 (Tex. Crim. App. 2003) (noting that agreement to plead guilty in exchange
for State’s recommended “cap” on sentencing was plea bargain under Rule
25.2(a)(2)). 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).
Accordingly, we dismiss this appeal for want of jurisdiction. See TEX. R. APP.
P. 43.2(f).
PER CURIAM
Panel consists of Justices Higley, Bland, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
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