Eddie Charles Saldana, Jr. v. State ( 2005 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-04-430 CR ____________________

EDDIE CHARLES SALDANA, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause No. 89445

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MEMORANDUM OPINION ⁽¹⁾  

Eddie Charles Saldana, Jr. pled guilty to aggravated robbery. The trial court sentenced Saldana to confinement for life in the Texas Department of Criminal Justice, Institutional Division.   

After the instant appeal was perfected, appellate counsel filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978), concluding there was no arguable error to support an appeal. Saldana filed a pro se brief raising seventeen issues. We have reviewed the record and find we lack jurisdiction over the appeal.

The record reflects Saldana pled guilty in exchange for the dismissal of five causes against him, and for the sentence to run concurrently with two other causes. At the time Saldana entered his guilty plea, the State introduced an "Agreed Punishment Recommendation," signed by the State, Saldana, and Saldana's counsel, wherein it was mutually agreed that in consideration for Saldana's guilty pleas to three separate causes, ⁽²⁾ the State would dismiss five other causes against him and further, the State would recommend to the trial court that the sentences in the causes to which Saldana agreed to plead guilty would run concurrently. This constitutes a plea bargain as contemplated by Tex. R. App. P. 25.2(a)(2). See Wayne v. State, 756 S.W.2d 724, 728 (Tex. Crim. App. 1988). Therefore, Saldana had a right to appeal only matters raised by written motion filed and ruled on before trial, or with the trial court's permission. See Tex. R. App. P. 25.2(a)(2).

The trial court's certification states this "is not a plea-bargain case, and the defendant has the right to appeal." Despite the trial court's certification, the Rule 25.2 requirements recited in a certification must be true and supported by the record. Ajagbe v. State, 132 S.W.3d 491 (Tex. App.--Houston [1st Dist.] 2004, no pet.); Waters v. State, 124 S.W.3d 825, 826 (Tex. App.--Houston [14th Dist.] 2003, no pet.).

Despite the trial court's certification, this was a plea-bargained case and Saldana had no right to appeal from his plea bargain. Thus the trial court's certification was incorrect. Because the record does not reflect any rulings adverse to Saldana on any pretrial written motions, or that he had the trial court's permission to appeal from a plea bargain, we lack jurisdiction over the appeal. See Saldana v. State, Nos. 09-04-036 CR, 09-04-037 CR (Tex. App. -- Beaumont March 30, 2005, no pet. h.) (not yet released for publication).   

APPEAL DISMISSED FOR WANT OF JURISDICTION.

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HOLLIS HORTON

Justice

Submitted on March 24, 2005

Opinion Delivered April 6, 2005

Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.

1. Tex. R. App. P. 47.4.

2. The other two cases were addressed by this Court in

Saldana v. State, Nos. 09-04-036 CR, 09-04-037 CR (Tex. App.-- Beaumont March 30, 2005, no pet. h.) (not yet released for publication).