Gaeeni, Mohammad Hossein v. State ( 2004 )

Dismissed and Opinion filed October 7, 2004

Dismissed and Memorandum Opinion filed October 7, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-04-00488-CR

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MOHAMMAD HOSSEIN GAEENI, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 957,579

M E M O R A N D U M   O P I N I O N

Appellant pled guilty to the offense of aggravated assault of a family member.  In accordance with the plea bargain, the trial court deferred adjudication and ordered appellant to serve five years of deferred adjudication probation.  The State moved to adjudicate guilt and, after a hearing, the trial court found appellant guilty and assessed punishment on April 20, 2004, at confinement for four years in the Institutional Division of the Texas Department of Criminal Justice. Appellant filed a timely notice of appeal from the judgment adjudicating guilt.  The trial court signed a certification of appellant=s right of appeal, finding that this was not a plea bargain and that appellant had the right of appeal. Because we find we have no jurisdiction to consider any of the issues raised by appellant, we dismiss. 

Appellant pled guilty to the charged offense in return for the State=s agreed recommendation of deferred adjudication, and therefore, the requirements of Rule 25.2 apply.  See Vidaurri v. State, 49 S.W.3d 880, 883 (Tex. Crim. App. 2001).  Rule 25.2 provides that, in a plea bargain case, a defendant may appeal only those matters that were raised by written motion filed and ruled on before trial, or after getting permission to appeal from the trial court.  Tex. R. App. P. 25.2(a)(2).  Appellant filed a general notice of appeal and a pro se notice of appeal, both on the same date, and in the pro se notice, appellant asserted that he met the requirements of Rule 25.2.  The record shows otherwise.  Nothing in the record indicates appellant obtained permission from the trial court and the record contains no pretrial motions filed by appellant. 

Aside from the provisions of Rule 25.2, the Court of Criminal Appeals has held that a defendant who pled guilty, received deferred adjudication as part of the plea bargain, and is later adjudicated guilty may not challenge the conviction on appeal, but may raise issues unrelated to the conviction.  Vidaurri, 49 S.W.3d at 885.  Because a limited right of appeal exists in deferred adjudication cases, the trial judge properly certified that appellant had the right of appeal.  However, appellant has not raised any issues unrelated to his conviction.  Instead, appellant complains of the excessiveness of the sentence and of the sufficiency of the evidence supporting the revocation of community supervision. 

Appellant=s plea bargain precludes his complaint that the sentence is excessive.  When a prosecutor recommends deferred adjudication in exchange for a defendant=s plea of guilty, the trial judge does not exceed that recommendation if, upon proceeding to an adjudication of guilt, he subsequently assesses any punishment within the range allowed by law.  Vidaurri, 49 S.W.3d at 885 (citing to Watson v. State, 924 S.W.2d 711, 714 (Tex. Crim. App. 1996).  In this case, appellant pled guilty to the offense of aggravated assault in return for the prosecutor=s recommendation of five years= deferred adjudication community supervision.  Aggravated assault is a second degree felony and the statute provides that a person adjudged guilty of a second degree felony Ashall be punished by imprisonment in the institutional division for any term of not more than 20 years or less than 2 years.@ Tex. Pen. Code Ann. ' 12.33(a) (Vernon 2003).  Because the trial judge sentenced appellant within the range allowed by law, the trial judge did not exceed the recommendation in the plea bargain.

In his second issue, appellant complains of the sufficiency of the evidence supporting the trial court=s revocation of community supervision.  Article 42.12 prohibits a defendant who has been adjudicated guilty of the original charge from raising on appeal contentions of error in the adjudication decision.  Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App.1999)(citing to Tex. Code Crim. Proc. Ann. art. 42.12 '5(b)).  Thus, section 5(b) of article 42.12 also prohibits contentions of insufficient evidence to support revocation of deferred adjudication probation.  Id.  at 740 (citing to Williams v. State, 592 S.W.2d 931 (Tex. Crim. App. 1979)). 

Accordingly, we dismiss the appeal for want of jurisdiction.

PER CURIAM

Judgment rendered and Memorandum Opinion filed October 7, 2004.

Panel consists of Justices Anderson, Hudson, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).