Dwayne Anderson, Sr. v. State ( 2010 )

Opinion issued October 21, 2010

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-09-00382-CR

———————————

Dwayne Anderson, Sr., Appellant

V.

The State of Texas, Appellee

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Case No. 1075307

MEMORANDUM OPINION

          Appellant Dwayne Anderson, Sr. pleaded guilty to the offense of injury to a child (his son) with an agreed punishment cap of no more than 20 years’ confinement.  After an evidentiary hearing and consideration of a presentence investigation report, the trial court sentenced Anderson to 20 years’ confinement.  On appeal, Anderson contends that he was deprived of a fair and impartial judge because of certain comments the trial court made when pronouncing sentence. 

The trial court’s certification of Anderson’s right to appeal stated that this was a plea-bargain case and Anderson had no right of appeal.  Based on this certification, the State moved to dismiss Anderson’s appeal.   Anderson contends that this Court is not precluded from reviewing his appellate issue “because criminal defendants have rights to appeal that are neither specifically addressed in the language of the CORTA rule nor reflected in the CORTA form.” In regard to Anderson’s appeal, we disagree with this contention.

In a plea-bargained case in which the punishment assessed does not exceed the plea agreement, a defendant may appeal only those matters that were raised by written motion filed and ruled on before trial, or after obtaining the trial court’s permission to appeal.  Tex. R. App. P. 25.2(a)(2); see Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006) (holding that agreement to punishment cap is plea bargain for purposes of Rule 25.2); Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003) (same).  Purportedly relying on Chavez, Anderson argues, “Criminal defendants ‘enjoy certain rights of appeal that are not enumerated in Rule 25.2 of the Rules of Appellate Procedure, not referred to in the form for certification of right to appeal, and not mentioned in Woods v. State, 108 S.W.3d 314 (Tex. Crim. App. 2003).’”  See Chavez, 183 S.W.3d at 677.

Anderson cites Chavez out of context.  In Chavez, the Court of Criminal Appeals granted discretionary review sua sponte “to consider the procedures used by the Thirteenth Court of Appeals.”  Id. at 676.  The Court of Criminal Appeals then identified the scope of its review in that case:

Pursuant to our order granting review, our review extends to the holdings set out in that order and to such other holdings of the court of appeals’ opinion as may be material to the consideration of these cases.  In our order granting review, we noted those holdings.

1) Texas criminal defendants enjoy certain rights of appeal that are not enumerated in Rule 25.2 of the Rules of Appellate Procedure, not referred to in the form for certification of right to appeal, and not mentioned in Woods v. State, 108 S.W.3d 314 (Tex. Crim. App. 2003).

. . . .

Id. at 677.  But the Court of Criminal Appeals did not endorse this holding of the court of appeals. Id. at 679.

With regard to the court of appeals’ holding that criminal defendants enjoy certain rights of appeal that are not set out in Rule 25.2, nor referred to in the certification of right to appeal, nor mentioned in Woods v. State, supra, the court of appeals acknowledged that it was “not authorized to address points of error that do not fall within one of the categories listed in [former rule 25.2(b)(3) ].”  Chavez, 139 S.W.3d at 56 (quoting Woods, supra at 316).  The court of appeals also concluded that this Court did not intend that the certification of right to appeal “abridge a criminal defendant’s substantive rights.”  Id.  It then held that the scope of its review under Anders is not confined by the terms of Rule 25.2 or the certification of right to appeal, but rather “the scope of [its] independent review includes any arguable grounds that might support an appeal, which by definition includes limited rights to appeal previously recognized by law.”  Id.  However, since the court of appeals delivered its Chavez opinion, we have held that the requirements of Rule 25.2(a)(2) do not impermissibly abridge the right to appeal.  Griffin v. State, 145 S.W.3d 645, 649 (Tex. Crim. App. 2004).

Id.

The trial court’s certification of Anderson’s right to appeal states that this is a plea-bargain case and Anderson has no right to appeal.  The record supports the certification.  We must dismiss an appeal “without further action, regardless of the basis for the appeal” if the trial court’s certification shows there is no right of appeal.  Id. at 680.

CONCLUSION

          Accordingly, we dismiss the appeal for lack of jurisdiction. Any pending motions are denied as moot.

                                                                   Michael Massengale

                                                                   Justice

Panel consists of Chief Justice Radack and Justices Massengale and Mirabal.[*]

Do not publish.   Tex. R. App. P. 47.2(b).

---

[*]           The Honorable Margaret Mirabal, Senior Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.  See Tex. Gov’t Code Ann. § 74.003(h) (Vernon 2005).