Jeffrey Lange Robertson v. State

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-07-120 CR ____________________

JEFFREY LANGE ROBERTSON, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause No. 98899

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MEMORANDUM OPINION

Appellant Jeffrey Lange Robertson pled guilty to felony theft. The record reflects Robertson pled guilty in exchange for an agreement that the State would not seek punishment of more than fourteen months of confinement in a state jail facility. The trial court convicted Robertson and sentenced him to one year of confinement in a state jail facility.

Appellate counsel filed a brief that concludes no arguable error is presented in this appeal. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). On May 10, 2007, this Court gave Robertson an extension of time in which to file a pro se brief. We received no response from Robertson. Upon submission of the appeal, we have reviewed the record and find we lack jurisdiction over the appeal. As we have found no error within our appellate jurisdiction to resolve, we decline to order appointment of new counsel before disposing of the appeal. Compare Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991).

A defendant convicted upon a guilty plea pursuant to a plea bargain agreement, when the punishment assessed does not exceed the agreed punishment recommendation, may appeal only those matters that were raised by written motion and ruled on before trial or after obtaining the trial court's permission to appeal. See Tex. Code Crim. Proc. Ann. art. 44.02 (Vernon 2006); Tex. R. App. P. 25.2(a)(2). To invoke our appellate jurisdiction, the recitations in a certification must be true and supported by the record. Saldana v. State, 161 S.W.3d 763, 764 (Tex. App.-Beaumont 2005, no pet.). Here, the trial court's certification states that Robertson's appeal "is not in a plea-bargain case, and the defendant has the right to appeal." However, when Robertson entered his guilty plea, the State introduced an "Agreed Punishment Recommendation," signed by the prosecutor and defense counsel, wherein the parties agreed that the State would not seek more than fourteen months of confinement in a state jail facility. This constitutes a plea bargain as contemplated by Rule 25.2(a)(2). See Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003) (An agreement to a punishment cap constitutes a plea bargain.); Tex. R. App. P. 25.2(a)(2). Therefore, Robertson had a right to appeal only matters raised by written motion filed and ruled on before trial, or with the trial court's permission. See Saldana, 161 S.W.3d at 764. This was a plea-bargain case; therefore, the trial court's certification is incorrect. Because the record does not reflect any rulings adverse to Robertson on any written pre-trial motions, and Robertson did not obtain the trial court's permission to appeal, we lack jurisdiction over this appeal. Accordingly, we dismiss this appeal for want of jurisdiction.

APPEAL DISMISSED FOR WANT OF JURISDICTION.

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HOLLIS HORTON

Justice

Submitted on November 5, 2007

Opinion Delivered November 28, 2007

Do Not Publish

Before Gaultney, Kreger, and Horton, JJ.