Gustavo Ponce v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00462-CR
Gustavo Ponce § From the 432nd District Court
§ of Tarrant County (1270527D)
v. § January 24, 2013
§ Per Curiam
The State of Texas § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that
the appeal should be dismissed. It is ordered that the appeal is dismissed.
SECOND DISTRICT COURT OF APPEALS
PER CURIAM
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00462-CR
GUSTAVO PONCE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Appellant Gustavo Ponce attempts to appeal his third-degree felony
conviction, pursuant to a plea bargain, for evading arrest in a vehicle.2 On
June 6, 2012, appellant received written plea admonishments, waived his
constitutional and statutory rights, judicially confessed, and pled guilty. The trial
court convicted him of evading arrest in a vehicle and sentenced him to three
1
See Tex. R. App. P. 47.4.
2
See Tex. Penal Code Ann. § 38.04(a), (b)(2)(A) (West Supp. 2012).
2
years’ confinement. On the same day, the trial court signed a certification of
appellant’s right to appeal, which appellant and his trial counsel also signed. The
certification states that appellant entered into a plea bargain, has ―NO right of
appeal,‖ and has waived his right to appeal. Nonetheless, appellant brought this
appeal.
Through a letter, we notified appellant of the contents of the certification
and stated that we would dismiss the appeal unless he filed a response showing
grounds for continuing it. See Tex. R. App. P. 25.2(a)(2), (d). We have received
a response, but it does not contain appropriate grounds for continuing an appeal
from this plea-bargained case. See Tex. R. App. P. 25.2(a)(2) (stating that a
defendant who enters into a plea bargain may appeal only when the trial court
gives permission or when the appeal concerns matters raised by written motion
filed and ruled on before trial); Chavez v. State, 183 S.W.3d 675, 679–80 (Tex.
Crim. App. 2006) (concluding that a defendant must raise even a jurisdictional
issue in a pretrial motion or receive permission from the trial court that accepted
the plea bargain in order to bring the issue on appeal).3 Therefore, in
accordance with the trial court’s certification, we dismiss this appeal. See Tex.
R. App. P. 25.2(d) (―The appeal must be dismissed if a certification that shows
3
In appellant’s response to our letter, without addressing the language of
rule 25.2(a)(2), he complains about issues, such as the voluntariness of his plea,
that were not raised by a written motion before trial and are therefore not
appealable. See Cooper v. State, 45 S.W.3d 77, 83 (Tex. Crim. App. 2001);
Turley v. State, 242 S.W.3d 178, 179 & n.4 (Tex. App.—Fort Worth 2007, no
pet.) (mem. op.).
3
the defendant has the right of appeal has not been made part of the record under
these rules.‖), 43.2(f); Chavez, 183 S.W.3d at 680; Jackson v. State, 168 S.W.3d
239, 243 (Tex. App.—Fort Worth 2005, no pet.).
PER CURIAM
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: January 24, 2013
4