Morris Joseph Jones v. State ( 2012 )

Opinion issued February 16, 2012

In The

Court of Appeals

For The

First District of Texas

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NO. 01-11-00416-CR

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morris joseph jones, Appellant

V.

The State of Texas, Appellee

On Appeal from 338th District Court

Harris County, Texas

Trial Court Case No. 1248982

MEMORANDUM OPINION

Appellant, Morris Joseph Jones, was charged with aggravated sexual assault of a child, see Tex. Penal Code Ann. § 21.021(a)(1)(B), (2)(B) (Vernon Supp. 2011), and continuous sexual abuse of a young child, see Tex. Penal Code Ann. § 21.02 (Vernon Supp. 2011).  Appellant pleaded guilty to the aggravated sexual assault charge, and it is not a part of this appeal.  After plea negotiations with the State, appellant pleaded guilty to aggravated sexual assault of a child, rather than continuous sexual abuse of a young child. There was no agreement as to a specific punishment, but rather that, after a presentence investigation (PSI), the State recommended that punishment be capped at 25 years’ confinement. After the PSI, the trial court assessed punishment at 25 years in accordance with the agreed-upon cap. Appellant filed several post judgment motions, both pro se and by counsel, including motions for new trial, which were overruled by operation of law.  Appellant filed a notice of appeal.  Pursuant to Rule 25.2(d) of the Texas Rules of Appellate Procedure, the trial court certified that “the defendant has waived the right to appeal.”  We agree and dismiss the appeal for want of jurisdiction.

          In his first issue on appeal, appellant contends that the trial court incorrectly certified that he had waived his right to appeal. The State asserts that this court lacks jurisdiction to hear this appeal because appellant waived his right to appeal when the trial court accepted his plea agreement as to punishment.  

A valid waiver of the right to appeal will prevent a defendant from appealing without the consent of the trial court. Tex. Code Crim. Proc. Ann. art. 1.14(a) (Vernon Supp. 2011); Monreal v. State, 99 S.W.3d 615, 617 (Tex. Crim. App. 2003). The Court of Criminal Appeals has held that when a defendant waives his right of appeal as part of an agreement on sentencing and the agreement is followed by the court, his waiver is made knowingly, intelligently, and voluntarily. See Ex parte Delaney, 207 S.W.3d 794, 798–99 (Tex. Crim. App. 2006); see also Blanco v. State, 18 S.W.3d 218, 219–20 (Tex. Crim. App. 2000). An agreement to a sentencing cap is an agreed plea bargain for purposes of Rule 25.2(a)(2). See Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006); Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003); Harris v. State, 149 S.W.3d 285, 286 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d); Threadgill v. State, 120 S.W.3d 871, 872 (Tex. App.—Houston [1st Dist.] 2003, no pet.).

The record in this case shows that in exchange for appellant’s agreement to plead guilty to a sentence that was capped, he agreed to waive his right of appeal. The plea papers state the maximum punishment of 25 years and the trial court followed the agreement. Appellant signed a document entitled “Advice of Defendant’s Right to Appeal” which stated, “If you pled guilty or no contest and accepted the punishment recommended by the prosecutor, however, you cannot appeal your conviction unless this Court gives you permission. If you waived or gave up your right to appeal, you cannot appeal your conviction.” Appellant also signed the trial court’s “Certification of Right to Appeal,” which noted that appellant had waived his right to appeal. Based on the record before this Court, we find that appellant voluntarily, knowingly, and intelligently, waived his right of appeal as part of his sentencing agreement with the State.

Further, in a plea bargain case such as this, a defendant 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). Appellant argues that by appointing appellate counsel, the trial court indicated its intent to grant permission to appeal. But this Court has held that a trial court’s granting of a defendant’s request for appointed counsel on appeal does not constitute implied permission to appeal.  See Iles v. State, 127 S.W.3d 347, 350 (Tex. App.—Houston [1st Dist.] 2004, no pet.).  The record contains nothing indicating that the trial court intended to grant appellant the right to appeal.

Appellant’s remaining points of error claim ineffective assistance of counsel at trial and an error in the judgment.  However, we have no jurisdiction to address these issues. Because appellant has no right of appeal, we must dismiss this appeal. See Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006) (“A court of appeals, while having jurisdiction to ascertain whether an appellant who plea-bargained is permitted to appeal by Rule 25.2(a)(2), must dismiss a prohibited appeal without further action, regardless of the basis for the appeal.”).[1]

Accordingly, we dismiss the appeal for want of jurisdiction.  All pending motions are dismissed as moot.  We direct the Clerk to issue the mandate within 10 days of the date of this opinion.  See Tex. R. App. P. 18.1.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

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

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[1]           Appellant contends, and the State concedes, that the judgment erroneously provides that appellant was convicted of continuous sexual abuse of a child, rather than aggravated sexual assault of a child.  We cannot address this issue because appellant does not meet the exceptions found in Tex. R. App. P. 25.2(a)(2).  See Chavez, 183 S.W.3d at 480 (holding that “[i]n such circumstances, no inquiry into even possibly meritorious claims may be made.”).  However, as the State points out in its brief, appellant may  file a motion for judgment nunc pro tunc in the trial court. See Tex. R. App. P. 23.1.