Carlos Aleman v. State

Dismissed and Memorandum Opinion filed February 5, 2019.
In The
Fourteenth Court of Appeals
NO. 14-18-00346-CR
CARLOS ALEMAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 240th District Court
Fort Bend County, Texas
Trial Court Cause No. 15-DCR-070323
MEMORANDUM OPINION
Appellant entered a plea of guilty to aggravated robbery. Appellant and the
State agreed that appellant’s punishment would not exceed confinement in prison
for more than 28 years. In accordance with the terms of this plea bargain agreement
with the State, the trial court sentenced appellant to confinement for 28 years in the
Institutional Division of the Texas Department of Criminal Justice. We dismiss the
appeal.
Although the trial court mistakenly entered a certification of the defendant’s
right to appeal in which the court certified that this is not a plea bargain case and the
defendant has the right of appeal as to punishment, we have no jurisdiction over the
appeal. See Tex. R. App. P. 25.2(a)(2). An agreement that places a cap on
punishment is a plea bargain for purposes of Texas Rule of Appellate Procedure
25.2(a)(2). Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003); Waters
v. State, 124 S.W.3d 825, 826–27 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d)
(holding reviewing court lacked jurisdiction where defendant pleaded guilty with a
sentencing cap of ten years, even though trial judge mistakenly certified defendant
had right of appeal); 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 to an open plea where plea was
entered pursuant to agreed sentencing cap).
Because appellant’s plea was made pursuant to a plea bargain, he may appeal
only matters raised by a written pretrial motion or with the trial court’s permission.
See Tex. R. App. P. 25.2(a)(2). Appellant’s counsel filed a brief in which he
concludes the appeal is wholly frivolous and without merit. See Anders v. California,
386 U.S. 738 (1967). Appellant does not challenge any pretrial rulings. The trial
court’s erroneous certification that the case is not a plea bargain case does not
constitute permission to appeal. See Waters, 124 S.W.3d at 826–27.
Accordingly, we dismiss the appeal.
PER CURIAM
Panel consists of Justices Christopher, Hassan, and Poissant.
Do Not Publish — Tex. R. App. P. 47.2(b).
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