John Fitzgerald Kennedy Jones v. State ( 2005 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-05-012 CR ____________________

JOHN FITZGERALD KENNEDY JONES, Appellant

V.

THE STATE OF TEXAS, Appellee

---

On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause No. 92027

---

MEMORANDUM OPINION

Appellant John Jones pled guilty, pursuant to a plea bargain, to the felony offense of burglary of a building. See Tex. Pen. Code Ann. § 30.02 (Vernon 2003). The trial court sentenced Jones to confinement in the state jail facility for twelve months. Jones appeals.

Jones asserts that, because of the ineffective assistance of defense counsel, his plea was not entered voluntarily or knowingly. He contends the State represented to defense counsel that the prosecution had possession of a videotape evidencing Jones committing the crime. Jones claims he pled guilty based on this representation, as well as his attorney's representation that, upon a plea of guilty, Jones would only serve a few months in jail. Jones states defense counsel was required to do his own investigation to determine if the videotape existed and should have advised Jones of the range of punishment for the offense charged. Jones contends that if defense counsel had conveyed the correct information, he would not have pled guilty.

Texas Rule of Appellate Procedure 25.2(d) states:

Certification of Defendant's Rights of Appeal. If the defendant is the appellant, the record must include the trial court's certification of the defendant's right of appeal under Rule 25.2(a)(2). The certification should be part of the record when notice is filed, but may be added by timely amendment or supplementation under this rule or Rule 34.5(c)(1) or Rule 37.1 or by order of the appellate court under Rule 34.5(c)(2). The appeal must be dismissed if a certification that shows the defendant has the right of appeal has not been made part of the record under these rules.

Tex. R. App. P. 25.2(d). The trial court originally certified this was a plea-bargained case and Jones did not have the right to appeal. An amended certification filed by the court states this is a plea-bargained case, but certifies Jones's right to appeal because Jones's appeal "is on matters that were raised by written motion filed and ruled on before trial." However, Jones's brief only raises the issue of the voluntariness of his plea based upon allegations of ineffective assistance of counsel, an issue that does not comport with the amended certification of Jones's right to appeal.

Rule 25(a)(2) states that in a plea-bargained case an appellant may appeal only "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. R. App. P. 25.2(a)(2); Estrada v. State, 149 S.W.3d 280, 282 (Tex. App.--Houston [1st Dist.] 2004, pet. ref'd). From the trial court's certification , it is clear the trial court certified an appeal only on matters raised and ruled on by written motion prior to trial. In plea-bargained cases we have no authority to address issues other than as authorized by rule 25.2(a)(2). See Estrada, 149 S.W.3d at 283. Appellant's ineffective assistance of counsel claims do not fall within the category of written motions raised and ruled on before trial. See Woods v. State, 108 S.W.3d 314, 316 (Tex. Crim. App. 2003). We have no jurisdiction to address Jones's only issue on appeal. We dismiss his appeal for want of jurisdiction.

DISMISSED.

___________________________________

DAVID GAULTNEY

Justice

Submitted on October 10, 2005

Opinion Delivered December 21, 2005

Do Not Publish

Before Gaultney, Kreger and Horton, J.J.