Jeffrey Engle v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00321-CR
JEFFREY ENGLE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 431ST DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. F15-2721-431
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MEMORANDUM OPINION1
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On May 16, 2016, as part of a plea-bargain agreement, Appellant Jeffrey
Engle pleaded guilty to the third-degree felony offense of assault on a family
member, enhanced to a second-degree felony offense. Tex. Penal Code Ann.
§§ 12.42(a), 22.01(a)–(b) (West Supp. 2016). In accordance with the agreement,
the trial court sentenced Appellant to eight years’ confinement with no fine. The
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See Tex. R. App. P. 47.4.
trial court certified that Appellant had no right to appeal. See Tex. R. App. P.
25.2(a)(2).
On August 17, Appellant filed a pro se notice of appeal in the trial court.
See Tex. R. App. P. 26.2(a). On August 23, we notified Appellant’s trial counsel
and Appellant that Appellant had filed a pro se notice of appeal, that the notice
appeared to have been filed untimely, that the trial court had certified that
Appellant had no right to appeal, and that we would dismiss the appeal unless
Appellant or any party desiring to continue the appeal filed a response showing
grounds for continuing the appeal no later than September 2. See Tex. R. App.
P. 25.2(d), 26.2(a), 44.3.
Appellant responded and pointed out that he had filed a pro se letter with
the trial court on June 13 that requested a “new hearing,” rendering his August
17 notice of appeal timely filed. See Tex. R. App. P. 26.2(a)(2). Appellant also
attached an April 10, 2015 court-setting document for cause number F-2014-
1078-F, which noted that the State was recommending a six-year sentence in
exchange for Appellant’s guilty plea to “AFV Impede Breath” and that the
recommendation would remain “open” until May 15, 2015. Appellant argued that
this document shows the punishment ultimately imposed exceeded the
punishment recommended by the State and agreed to by Appellant, entitling him
to appeal his eight-year sentence. See Tex. Code Crim. Proc. Ann. art. 44.02
(West 2006); Tex. R. App. P. 25.2(a). But the indictment in F-2014-1078-F was
dismissed in early 2016 after the State re-indicted Appellant in the instant cause
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number. The plea-bargain documents signed at the time of Appellant’s guilty
plea in the instant cause number reflect that the State recommended a sentence
of eight years’ confinement with no fine in exchange for Appellant’s guilty plea to
the indicted offense. This was the sentence imposed by the trial court.
Appellant’s trial counsel also responded, filing a motion to withdraw and
noting that the trial court’s certification divested this court of any jurisdiction over
Appellant’s attempted appeal. Indeed, the record before this court does not
show that Appellant’s sentence exceeded the State’s recommendation, that
Appellant desires to appeal a matter that was raised by written motion filed and
ruled on before trial, or that the trial court granted Appellant permission to appeal.
See Tex. Code Crim. Proc. Ann. art. 44.02; Tex. R. App. P. 25.2(a)(2). Thus, in
accordance with the trial court’s certification, we dismiss this appeal. See Tex.
R. App. P. 25.2(d), 43.2(f); Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim.
App. 2006). Because we have no jurisdiction to address anything other than the
effect of the trial court’s certification, we take no action on counsel’s motion to
withdraw. See Chavez, 183 S.W.3d at 680 (“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 . . . .”).
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/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: LIVINGSTON, C.J.; GABRIEL and SUDDERTH, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: September 22, 2016
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