Richard Beamon, Jr. v. State

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-08-00127-CR ____________________ RICHARD BEAMON, JR., Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 07-01101 MEMORANDUM OPINION Appellant Richard Beamon, Jr. pled guilty to possession of a controlled substance. The record reflects that Beamon pled guilty in exchange for an agreement that provided for misdemeanor punishment for the state jail felony and a term of confinement of twelve months in the county jail. The trial court convicted Beamon and sentenced him to twelve months of confinement in the county jail. 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 October 16, 2008, we gave Beamon an extension of time in which to file a pro se brief. We received no response from Beamon. 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). A reviewing court that has an appellate record before it must review that record to ascertain whether the certification is defective. Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005); Odneal v. State, 161 S.W.3d 692, 694 (Tex. App.--Beaumont 2005, pet. ref'd). A certification is defective if it is correct in form "but which, when compared with the record before the court, proves to be inaccurate." Dears, 154 S.W.3d at 614. 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 Beamon's appeal "[i]s not a plea bargain case and the defendant has the right of appeal[.]" However, the record includes an "Agreed Punishment Recommendation," signed by the prosecutor and defense counsel, wherein the parties agreed that Beamon would only face misdemeanor punishment for the state jail felony and a term of confinement of twelve months in the county jail. 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, Beamon 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 Beamon on any written pre-trial motions, and Beamon did not obtain the trial court's permission to appeal, we dismiss this appeal. See Tex. R. App. P. 25.2(a)(2). APPEAL DISMISSED. ______________________________ STEVE McKEITHEN Chief Justice Submitted on February 11, 2009 Opinion Delivered February 25, 2009 Do Not Publish Before McKeithen, C.J., Gaultney and Kreger, JJ.