Pena, Carlos Anaya v. State

Dismissed and Memorandum Opinion filed August 8, 2006 Dismissed and Memorandum Opinion filed August 8, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-05-00453-CR ____________ CARLOS ANAYA PENA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 183rd Criminal District Court Harris County, Texas Trial Court Cause No. 798,400 M E M O R A N D U M   O P I N I O N Appellant, Carlos Anaya Pena, pleaded guilty to murder in exchange for a pre-sentence investigation and the State=s recommendation that punishment be capped at sixty years= confinement. After the pre-sentence investigation and a hearing, the trial court sentenced appellant to forty-five years= confinement in the Texas Department of Criminal Justice, Institutional Division. On appeal, appellant contends he was denied his constitutional right to confrontation when, during the hearing, the trial court allowed one witness to testify to another person=s victim impact. However, we do not reach appellant=s issue because we hold that this was a plea-bargain case and the record reflects no basis for appeal. As a result, we have no jurisdiction and so dismiss the appeal. Relevant Facts In February 2005, appellant entered a plea of Aguilty@ to the murder of Jesus Villela. Appellant signed a written Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession in which he agreed AI understand the above allegations and I confess that they are true and that the acts alleged above were committed on November 10, 1998.@ The plea reflected it was Awithout an agreed recommendation,@ but also showed that the State agreed to a pre-sentence investigation and a sentencing cap of sixty years= confinement. The trial court sentenced appellant to confinement for 45 years, within the State=s recommended cap. However, the trial court=s judgment reflected that the plea bargain was AWOAR,@ and its certification of appellant=s right to appeal reflected that the case Ais not a plea-bargain case, and the defendant has the right of appeal.@ Analysis of Jurisdictional Issue The State argues that, because this is a plea-bargain case and appellant has not demonstrated that he has a right to appeal, this Court lacks jurisdiction over his appeal. Having reviewed the record, we agree. A plea-bargain case is one in which Athe defendant=s pleas is guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant.@ See Tex. R. App. P. 25.2(a)(2). An agreement to a punishment cap is a plea bargain. See Shankle v. State, 119 S.W.3d 808, 813B14 (Tex. Crim. App. 2003); Waters v. State, 124 S.W.3d 825, 826 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d). The trial court sentenced appellant to confinement for forty-five years, and therefore accepted the plea bargain between the State and appellant to cap the sentence at sixty years. Consequently, appellant has a right to appeal only (1) those matters that were raised by written motion filed and ruled on before trial, or (2) after getting the trial court=s permission to appeal. See Tex. R. App. P. 25.2(a)(2). The record does not reflect any rulings adverse to appellant on any pretrial written motions, or that he had the trial court=s permission to appeal from a plea bargain. Moreover, although the judgment reflects AWOAR,@ the mere recital that a plea is Aunagreed@ will not convert the proceeding into an open plea. See Threadgill v. State, 120 S.W.3d 871, 872 (Tex. App.CHouston [1st Dist.] 2003, no pet.) (per curiam); Lemoins v. State, 37 S.W.3d 556, 559 (Tex. App.CBeaumont 2001, no pet.). Nor will the trial court=s incorrect certification that appellant=s case is not a plea-bargain case convert the proceeding. See Saldana v. State, 161 S.W.3d 763, 764 (Tex. App.CBeaumont 2005, no pet.); Barcenas v. State, 137 S.W.3d 865, 865B66 (Tex. App.CHouston [1st Dist.] 2004, no pet.); see also Waters, 124 S.W.3d at 826 (ADespite the trial court=s certification, we believe the Rule 25.2 requirements recited in a certification must be true and supported by the record.@). We hold that the record as a whole establishes the existence of a plea bargain. Because this is a plea-bargain case, and the record does not show that appellant has a right to appeal under Texas Rule of Appellate Procedure 25.2(a)(2), we dismiss the appeal for lack of jurisdiction. /s/ Wanda McKee Fowler Justice Judgment rendered and Memorandum Opinion filed August 8, 2006. Panel consists of Justices Hudson, Fowler, and Seymore. Do Not Publish C Tex. R. App. P. 47.2(b).