State v. Ruben Trevino Mireles ( 2012 )


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  •                              NUMBER 13-11-00120-CR
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI - EDINBURG
    VICTOR HUGO SALINAS TEJEDA,                                                    Appellant,
    v.
    THE STATE OF TEXAS,                                                              Appellee.
    On appeal from the 275th District Court
    of Hidalgo County, Texas.
    MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Garza and Vela
    Memorandum Opinion by Chief Justice Valdez
    Pursuant to a plea agreement with the State, appellant, Victor Hugo Salinas
    Tejeda, pleaded guilty to two counts of burglary of a habitation, a second-degree felony.
    See TEX. PENAL CODE ANN. § 30.02 (West 2003). The trial court sentenced appellant to
    ten years‟ confinement and ordered restitution of $44,332. By three issues, appellant
    challenges the trial court‟s order of restitution. We dismiss for want of jurisdiction.
    I.      BACKGROUND
    On May 13, 2010, the home of Patricia Rios was burglarized. The burglary was
    captured on video surveillance. During this incident, the perpetrators disabled Rios‟s
    alarm system. On May 16, 2010, Rios‟s home was again burglarized; this incident was
    also captured on video surveillance. In addition to stealing property including, among
    other things, computers, televisions, ceiling fans, and bedroom sets, the suspects also
    set a mattress on fire.
    On July 20, 2010, a grand jury indicted appellant for two counts of second-
    degree burglary of a habitation occurring on May 13, 2010 and one count of first-degree
    burglary of a habitation occurring on May 16, 2010. See 
    id. On November
    8, 2010,
    appellant pleaded guilty to burglary with intent to commit theft occurring on May 13 and
    to burglary with intent to commit theft occurring on May 16. This appeal followed.
    II.     JURISDICTION
    The State alleges that we lack jurisdiction over this case. The State argues that
    under Texas Rule of Appellate Procedure 25.2(a)(2) appellant is barred from appealing
    his conviction because this is a plea bargain case and the trial court has not given
    appellant permission to appeal. See TEX. R. APP. P. 25.2(a)(2) (stating that, “[i]n a plea
    bargain case . . . a defendant may appeal only: (A) those matters that were raised by
    written motion filed and ruled on before trial, or (B) after getting the trial court‟s
    permission to appeal”).         We note that the clerk‟s record contains the trial court‟s
    certification stating that “This criminal case is not a plea bargain, and the Defendant has
    the right of appeal.”1
    1
    The State points to State‟s exhibits 4 and 4-A, admitted at the plea hearing, signed by another
    judge stating, “This criminal case is a plea bargain, and the Defendant has NO right of appeal.” These
    documents are included in the clerk‟s record; however, they are merely identified in the table of contents
    of the clerk‟s record as State‟s exhibits 4 and 4-A. The documents were not file stamped by the District
    2
    This issue concerns a plea bargain; therefore, “we review the record to determine
    (1) our jurisdiction, and (2) whether the trial court‟s certification is correct.” Pena v.
    State, 
    323 S.W.3d 522
    , 525 (Tex. App.—Corpus Christi 2010, no pet.) (citing Morgan v.
    State, 
    185 S.W.3d 535
    , 537 (Tex. App—Corpus Christi 2006, pet. ref‟d)).                            A plea
    bargain exists when “a defendant‟s plea was guilty or nolo contendere and the
    punishment did not exceed the punishment recommended by the prosecutor and
    agreed to by the defendant . . . .” TEX. R. APP. P. 25.2(a)(2). “There are four general
    elements necessary to constitute a plea bargain:                    „(1) that an offer be made or
    promised, (2) by an agent of the State in authority, (3) to promise a recommendation of
    sentence or some other concession such as a reduced charge in the case, (4) subject
    to the approval of the trial judge.‟” 
    Pena, 323 S.W.3d at 525
    (citing Wayne v. State, 
    756 S.W.2d 724
    , 728 (Tex. Crim. App. 1988)).
    At the plea hearing, the State informed the trial court that a plea agreement had
    been reached and defense counsel did not object. The trial court stated it would accept
    the plea agreement and admonished the defendant of the consequences of entering a
    guilty plea. The trial court admitted State‟s exhibits 1, 3, and 3-A, which included: (1)
    the appellant‟s waiver of rights and consent to stipulation of evidence and plea of guilty
    or no contest; (2) the plea admonishments; and (3) the agreed punishment
    recommendation and post-conviction waivers for both charges. The agreed punishment
    recommendation and post-conviction waivers set out that, in exchange for appellant‟s
    plea of guilty, the State would recommend that the trial court sentence appellant to ten
    Clerk.
    It appears, therefore, that this Court was not aware of these documents when the record was
    filed; and, on March 9, 2011, we informed the District Clerk that appellant was appealing his conviction
    and requested the trial court‟s certification. On March 29, 2011, a supplemental clerk‟s record was filed in
    this Court with the certification stating this cause was not a plea bargain case.
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    years‟ confinement and that the State would not oppose shock probation. The State
    also agreed to dismiss count three of the indictment—the first-degree burglary of a
    habitation charge.
    At the plea hearing, the trial court explained that if appellant entered into a plea
    bargain and the trial court accepted and followed the plea bargain, appellant was
    “waiving . . . giving up some very valuable rights” including, among other things, the
    right to file a motion for new trial, and the right to file a notice of appeal. Appellant
    stated that his attorneys had explained those waivers of rights to him, that he
    understood those waivers, and that he was asking the trial court to accept and approve
    the plea bargain. The written plea admonishments, signed by appellant, stated that “If
    the punishment assessed does not exceed the agreement between you and the
    prosecutor, the [trial court] must give permission before you can appeal on any matter in
    the case except for matters raised by written motion before trial.”          The agreed
    punishment recommendation and post-conviction waivers stated the following:
    I understand that I have the legal right to appeal my conviction, and
    also the right to be represented on appeal by an attorney of my choice, or
    if I am too poor to pay for such attorney or the record on appeal, the Court
    will, without expense to me provide an attorney and a proper record for
    such an appeal, but after consulting with my attorney and in return for the
    State making a recommendation on punishment to the Court, I voluntarily,
    knowingly, and intelligently waive my right to appeal and my right to file a
    motion for new trial.
    I further state that I accept the State‟s plea offer as stated in this
    document. . . .
    Appellant‟s signature appears directly below this paragraph.
    The record demonstrates that appellant entered into a plea bargain with the
    State, and the trial court did not exceed the recommended punishment of ten years.
    See 
    id. Therefore, this
    is a plea bargain case. See 
    id. Moreover, there
    was no written
    4
    motion ruled on before trial, see TEX. R. APP. P. 25.2(a)(2)(A); and the trial court‟s
    certification did not affirmatively grant appellant permission to appeal but rather only
    certified that he has a right to appeal because this “is not a plea-bargain case.” See 
    id. R. 25.2(a)(2)(B).
    We conclude that the trial court‟s certification of appeal is defective because it
    inaccurately characterizes appellant‟s conviction as not arising out of a plea bargain,
    when the record clearly demonstrates there was a plea bargain. See 
    Pena, 323 S.W.3d at 525
    . Accordingly, we do not have jurisdiction over this appeal. TEX. R. APP. P.
    25.2(a)(2); Sherwood v. State, 
    340 S.W.3d 929
    , 932 (Tex. App.—El Paso 2011, no pet.)
    (“[W]hen the record is clear that the defendant waived any and all rights to appeal,
    ordering a corrected certification would serve no purpose other than to delay further
    proceedings as the defendant would still be unable to appeal his conviction.”); 
    Pena, 323 S.W.3d at 525
    (explaining that the appellate court was not required “to order the
    trial court to correct the certification because the record affirmatively demonstrates that
    [the appellant] did not have the right to appeal”).
    III.   CONCLUSION
    This appeal is dismissed for want of jurisdiction.
    __________________
    ROGELIO VALDEZ
    Chief Justice
    Do not Publish.
    TEX. R. APP. P. 47.2(b)
    Delivered and filed the
    2nd day of February, 2012.
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