Marcus Ray Bortle v. State ( 2015 )

Opinion issued September 29, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00978-CR
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MARCUS RAY BORTLE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Cause No. 1430563
MEMORANDUM OPINION
Appellant, Marcus Ray Bortle, pleaded guilty to the third-degree felony
offense of intoxicated assault with vehicle—serious bodily injury, with the agreed
recommendation that he receive five years’ confinement. See TEX. PENAL CODE
ANN. §§ 49.07(a)(1), (c) (West Supp. 2014). On October 8, 2014, the trial court
assessed appellant’s punishment at five years’ confinement, in accordance with the
terms of his plea bargain with the State. The trial court certified that this is a plea-
bargained case and that appellant has no right of appeal. Nevertheless, appellant
timely filed a pro se notice of appeal, acknowledging that his punishment did not
exceed the punishment recommended by the State and agreed to by appellant, but
contending that his guilty plea was involuntary due to alleged ineffective assistance
of trial counsel. The trial court appointed appellate counsel for appellant, who
filed a letter with the Clerk of this Court informing the Court that the trial court’s
certification indicates that this is a plea-bargained case and appellant has no right
of appeal. We dismiss this appeal for want of jurisdiction.
In a plea-bargain case—where a defendant pleaded guilty and the
punishment did not exceed the punishment recommended by the prosecutor and
agreed to by the defendant—as here, 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. § 44.02 (West
Supp. 2014); TEX. R. APP. P. 25.2(a)(2). To the extent appellant contends that his
plea was involuntary, the Court of Criminal Appeals has held that the voluntariness
of a guilty plea may not be contested on direct appeal following a plea-bargain
agreement. See Woods v. State, 108 S.W.3d 314, 316 & n.6 (Tex. Crim. App.
2003); Cooper v. State, 45 S.W.3d 77, 81, 83 (Tex. Crim. App. 2001).
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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). The
trial court’s certification, which is included in the clerk’s record, states that this is a
plea-bargain case and that appellant has no right of appeal. See TEX. R. APP. P.
25.2(a)(2), (d).
Here, the clerk’s record contains plea admonishment papers indicating that
appellant waived his right to have the court reporter record his plea. The clerk’s
record also contains a plea information sheet, waiver of constitutional rights,
agreement to stipulate, and judicial confession indicating that appellant pleaded
guilty to the charged offense in exchange for the State’s agreement to recommend
that he receive five years’ confinement, and the standard waiver of his right of
appeal if the trial court accepted the plea-bargain agreement. The judgment of
conviction in the clerk’s record reflects that the trial court accepted the agreement
because it assessed appellant’s punishment at five years’ confinement at
sentencing. See TEX. R. APP. P. 25.2(a)(2). Thus, the record supports the trial
court’s certification that this is a plea-bargain case and the trial court did not give
its permission to appeal. See Dears, 154 S.W.3d at 615.
Because appellant has no right of appeal in this plea-bargain case, we must
dismiss this appeal without further action. See Menefee v. State, 287 S.W.3d 9, 12
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n.12 (Tex. Crim. App. 2009); 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.”);
see also Greenwell v. Court of Appeals for Thirteenth Judicial Dist., 159 S.W.3d
645, 649 (Tex. Crim. App. 2005) (explaining purpose of certification requirements
is to resolve cases that have no right of appeal quickly without expense of
appointing appellate counsel, preparing reporter’s record or preparing appellate
brief).
CONCLUSION
Accordingly, we dismiss this appeal for want of jurisdiction. See TEX. R.
APP. P. 43.2(f). We dismiss any pending motions as moot.
PER CURIAM
Panel consists of Justices Keyes, Massengale, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
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