JOHNETTA CALVILLO v. THE STATE OF TEXAS (2011)

OPINION

Opinion By Justice Maloney

In the trial court, Johnetta Calvillo waived a jury and entered a plea of guilty to possession with intent to deliver methamphetamine in an amount of 400 grams or more.   See Tex. Health & Safety Code Ann. § 481.112(a), (f) (West Supp.2010).   In exchange for appellant entering a plea of guilty, the State agreed to cap punishment at thirty years in prison, a $10,000 fine, and a finding that appellant used a deadly weapon.   After hearing evidence, the trial court accepted the plea agreement, found appellant guilty, assessed a fifteen-year sentence and a $3,000 fine, and found that appellant used or exhibited a deadly weapon, a firearm, during commission of the offense.

A plea bargain is a contract between the State and the defendant.  Moore v. State, 295 S.W.3d 329, 331 (Tex.Crim.App.2009).   Plea bargaining consists of the prosecutor's concessions regarding punishment, lesser charges, or reduction in counts in exchange for a defendant's plea of guilty or nolo contendere.   See Ex parte Williams, 637 S.W.2d 943, 948 (Tex.Crim.App.1982).   Here, the prosecutor agreed to cap the punishment at thirty years in prison.   Texas statutes provide that this offense is punishable by imprisonment for fifteen to ninety-nine years or life, and an optional fine of up to $10,000.  Tex. Penal Code Ann. § 12.32 (West Supp.2010);  Tex. Health & Safety Code Ann. § 481.112(f).

The trial court's rule 25.2(d) certification of appellant's right to appeal states the case does not involve a plea bargain and appellant has the right to appeal.   Thus, the record before us does not support the trial court's certification.   See Dears v. State, 154 S.W.3d 610, 614–15 (Tex.Crim.App.2005);  Mercer v. State, 262 S.W.3d 810, 811 (Tex.App.-Houston [1st Dist.] 2008, no pet.).

Appellant entered into a plea agreement in this case, and the record contains no rulings on pretrial motions that would serve as a basis for appeal.   Further, nothing shows the trial court affirmatively gave appellant permission to appeal.   See Tex.R.App. P. 25.2(a)(2).   Thus, we lack jurisdiction over the appeal.

We dismiss the appeal for want of jurisdiction.

FRANCES MALONEY JUSTICE, ASSIGNED