Carlos Ignacio Hernandez v. State ( 2014 )

Opinion issued August 26, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-01086-CR
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CARLOS IGNACIO HERNANDEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Case No. 1339390
MEMORANDUM OPINION
Appellant Carlos Ignacio Hernandez pleaded guilty, pursuant to an
agreement with the State that punishment be capped at confinement for 40 years, to
the first degree felony offense of aggravated sexual assault of a child under
fourteen years of age. See TEX. PENAL CODE. ANN. § 22.021(a)(1)(B)(i), (a)(2)(B)
(West Supp. 2013). The trial court found appellant guilty and, in accordance with
appellant’s plea agreement with the State, assessed punishment at confinement for
40 years. The trial court certified that this is a plea-bargain case and that appellant
does not have the right of appeal. Nevertheless, appellant filed a notice of appeal.
We dismiss the appeal for lack of jurisdiction.
A plea bargain case is one in which “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). 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 the trial court's
permission to appeal. See id. The appeal must be dismissed if a certification
showing that the defendant has the right of appeal has not been made part of the
record. See TEX. R. APP. P. 25.2(d).
The clerk’s record reflects that appellant pleaded guilty in exchange for the
State’s recommendation that punishment be capped at confinement for 40 years.1
An agreement to a recommended cap on punishment constitutes a plea
bargain. See Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App.
2003); Wilson v. State, 264 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.]
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Although not stated in the plea agreement, the record further reflects that the State
agreed to dismiss the related charge of indecency with a child in Trial Court Cause No.
1256075 upon appellant’s sentencing.
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2007, no pet.); Waters v. State, 124 S.W.3d 825, 826 (Tex. App.—Houston [14th
Dist.] 2003, pet. ref'd). The clerk’s record reflects that the trial court properly
admonished appellant and that appellant understood that he would not have the
right of appeal. The trial court assessed punishment at confinement for 40 years, in
accordance with appellant’s agreement with the State.2 We conclude that the record
supports the trial court’s certification. See TEX. R. APP. P. 25.2; Dears v. State, 154
S.W.3d 610, 615 (Tex. Crim. App. 2005).
In a plea bargained case in which the punishment assessed does not exceed
the plea agreement, “a defendant may appeal only (A) those matters that were
raised by written motion filed and ruled on before trial, or (B) after obtaining the
trial court’s permission to appeal.” TEX. R. APP. P. 25.2(a)(2). The trial court did
not rule adversely to appellant on any pre-trial matters and did not give permission
for appellant to appeal. See id.3 Because appellant has no right of appeal, we must
2
The trial court’s judgment states, “Term of Plea Bargain: Without an Agreed
Recommendation – PSI Hearing.” Such language does not convert the plea to an open
plea when, as here, the plea was entered pursuant to an agreed sentencing
cap. See Threadgill v. State, 120 S.W.3d 871, 872 (Tex. App.—Houston [1st Dist.]
2003, no pet.) (holding statement in record indicating that there was no agreed
recommendation did not convert proceeding into open plea when plea was entered
pursuant to agreed sentencing cap).
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Although the trial court denied appellant’s oral request to withdrawal his plea during the
sentencing hearing, appellant’s request was not a matter raised by written motion and
ruled on before trial. See TEX. R. APP. P. 25.2(a)(2); Phillips v. State, No. 01-09-00047-
CR, 2010 WL 2991081, at *1 (Tex. App.—Houston [1 Dist.] July 29, 2010, pet. ref’d);
Vasquez v. State, No. 05-09-01369-CR, 2010 WL 2574218, at *1 (Tex. App.—Dallas
June 29, 2010, pet. ref’d); Chavez v. State, 139 S.W.3d 43, 59 (Tex. App.—Corpus
Christi 2004, pet. granted), aff’d, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006).
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dismiss the appeal. See TEX. R. APP. P. 25.2(d); 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.”).
Accordingly, we dismiss the appeal for lack of jurisdiction. See TEX. R. APP.
P. 43.2(f). We dismiss the motion to withdraw filed by appellant’s appointed
attorney as moot.
PER CURIAM
Panel consists of Justices Massengale, Brown, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
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