. ----------- Ruben Rodriguez, Appellant v. The STate of Texas, Appellee (2010)

MEMORANDUM OPINION

Appellant, Ruben Rodriguez, accepted a plea bargain and entered a plea of guilty to the charge of possession of a prohibited substance inside a correctional facility.¹  The trial court assessed punishment at six years' imprisonment.   In his sole issue on appeal, appellant contends that collateral estoppel should have prevented him from being charged with this offense.

We dismiss for lack of jurisdiction.

BACKGROUND

On December 28, 2006, Sargeant S. Mata of the Texas Department of Corrections observed appellant, who was in prison serving an 18 year sentence for possession of a controlled substance, act suspiciously and then place something into his mouth.   Sargeant Mata approached appellant who then began to run.   After ignoring several orders from Sargeant Mata, appellant stopped running.   Sargeant Mata and other officers escorted appellant to a building where he was strip searched.   During the search, appellant gave the officers a package he had with him.   The package contained “a green substance wrapped in plastic.”   Testing indicated that the substance contained approximately six grams of marihuana.   Appellant asserts that he received an institutional punishment including “(1) loss of recreation and commissary privileges for 45 days;  (2) no contact visits until January 31, 2007;  (3) 15 days in solitary confinement;  (4) reduction in prisoner status;  and, (5) a loss of 180 days of ‘good time.’ ”

The State indicted appellant for possession of marihuana, a controlled substance, while in a secure correctional facility.   His offense was enhanced based on a conviction on September 25, 2002 for possessing a controlled substance weighing more than 400 grams.

On August 31, 2007, appellant entered a plea of “guilty” to the charge and pled “true” to the enhancement paragraph in exchange for a plea bargain in which he would serve six years after the completion of his current sentence.   Prior to the trial court's acceptance of appellant's plea bargain, appellant initialed admonishments, which included a statement that reads:

If the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by me and my attorney, the Court must give its permission to me before I may prosecute an appeal on any matter in this case except for those matters raised by written motion filed prior to trial.

The same day, the trial court accepted the plea bargain, adjudicated appellant guilty, and assessed punishment at six years' imprisonment, to begin at the conclusion of appellant's current sentence in accordance with the terms of the plea bargain.   The trial court certified that this was a plea bargain case, that appellant had no right to appeal without obtaining the permission of the trial court, and that appellant had waived his right to appeal.   Appellant did not file a motion for a new trial.

On June 16, 2008, appellant filed a writ of habeas corpus with the Court of Criminal Appeals, which the Court denied without comment on August 28, 2008.

On September 24, 2008, appellant filed his notice of appeal of his 2007 conviction.²  Appellant filed his pro se brief on December 22, 2008.

ANALYSIS

The Texas Rules of Appellate Procedure provide that a defendant may appeal a plea bargain case only in limited circumstances.   Specifically, Rule 25.2(a) provides:

In a plea bargain case-that is, a case in which a defendant's plea was guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant-a defendant may appeal only:

(A) those matters that were raised by written motion filed and ruled on before trial, or

(B) after getting the trial court's permission to appeal.

Tex.R.App. P. 25.2(a).

Appellant pleaded guilty to the felony offense of possession of a controlled substance within a correctional facility.   In accordance with appellant's plea bargain with the State, the trial court assessed punishment at six years' imprisonment.

After the trial court assessed appellant's punishment to a term of years that fell within the parameters of the plea bargain, the trial court certified that this case was a plea bargain case and the defendant had no right to appeal without the permission of the trial court.   Appellant did not request the trial court's permission to appeal any pre-trial matters, and the trial court did not give its permission for appellant to appeal.

We conclude that the certifications of the right of appeal filed by the trial court are supported by the record and that appellant has no right of appeal due to the agreed plea bargain.   See Tex.R.App. P. 25.2(a).   Therefore, we lack jurisdiction to hear this appeal.   Because appellant has no right of appeal, we must dismiss this appeal “without further action.”   See Chavez v. State, 183 S.W.3d 675, 680 (Tex.Crim.App.2006).

Furthermore, appellant filed his notice of appeal on September 24, 2008.   The trial court adjudicated him guilty, in accordance with the terms of the plea bargain, on August 31, 2007.   Under Rule 26.2(a)(1), a defendant who does not file a motion for a new trial must perfect his appeal by filing a notice of appeal within 30 days of his sentence being imposed.  Tex.R.App. P. 26.2(a)(1).   This deadline is likewise jurisdictional and requires us to dismiss the appeal in any event.   See Slaton v. State, 981 S.W.2d 208, 209-10 (Tex.Crim.App.1998);  Strange v. State, 258 S.W.3d 184, 185 (Tex.App.-Houston [1st Dist.] 2007, pet. ref'd.) (citing Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App.1996));  Douglas v. State, 987 S.W.2d 605, 605-06 (Tex.App.-Houston [1st Dist.] 1999, no pet.).

CONCLUSION

We dismiss the appeal for want of jurisdiction.   We deny any pending motions as moot.

FOOTNOTES

FN1. See Tex. Penal Code Ann. § 38.11(d)(1) (Vernon 2003) (providing elements for offense of possession of controlled substance in correctional facility)..  FN1. See Tex. Penal Code Ann. § 38.11(d)(1) (Vernon 2003) (providing elements for offense of possession of controlled substance in correctional facility).

FN2. Appellant's notice of appeal and brief are ambiguous as to whether he is appealing his original conviction or the Court of Criminal Appeals' denial of his writ of habeas corpus.   This Court does not have jurisdiction to review a denial of a writ of habeas corpus by the Court of Criminal Appeals.   See Tex. Const. art. 5 § 5;  Tex.Code Crim. Proc. Ann. art. 4.03 (Vernon 2006)..  FN2. Appellant's notice of appeal and brief are ambiguous as to whether he is appealing his original conviction or the Court of Criminal Appeals' denial of his writ of habeas corpus.   This Court does not have jurisdiction to review a denial of a writ of habeas corpus by the Court of Criminal Appeals.   See Tex. Const. art. 5 § 5;  Tex.Code Crim. Proc. Ann. art. 4.03 (Vernon 2006).

Evelyn V. Keyes Justice