Juan Valentine Ibarra, Appellant v. The State of Texas, Appellee (2016)

MEMORANDUM OPINION

Appellant entered a guilty plea to aggravated assault and possession of body armor by a felon.  As punishment for these offenses, the trial court sentenced appellant to confinement for twenty years and ten years, respectively, in the Institutional Division of the Texas Department of Criminal Justice.  The trial court ordered the sentences to run concurrently.  In each case, appellant filed a timely notice of appeal.  We dismiss both appeals.

Following abatement for a determination of whether appellant was entitled to appointed counsel on appeal, the trial court filed findings of fact and conclusions of law.  The trial court's findings and conclusions reflect that in exchange for appellant's guilty plea to both offenses, the State dismissed cases for felon in possession of a weapon, burglary of a habitation, possession of controlled substance with intent to deliver 4–200 grams, and aggravated assault of a public servant.  Both clerk's records contain a case reset form reflecting that appellant was charged with five offenses in addition to the two in the appeals currently before this court.

Because the offenses underlying these appeals are part of a charge-bargain case, we have no jurisdiction over the appeals.  See Tex.R.App. P. 25.2(a)(2).  Appellant has the right to appeal under Texas Rule of Appellate Procedure 25.2(a)(2), only:  (A) those matters that were raised by written motion filed and ruled on before trial, or (B) after receiving the trial court's permission to appeal.  Kennedy v. State, 297 S.W.3d 338, 340–41 (Tex.Crim.App.2009);  see also Shankle v. State, 119 S.W.3d 808, 812–13 (Tex.Crim.App.2003) (holding that charge bargain that “effectively puts a cap on punishment” is a bargain governed by Rule 25.2(a)(2)).

The trial court's findings of fact and conclusions of law demonstrate the trial court does not grant permission to appeal and the records before this court do not reflect any pretrial motions that could be appealed.  The trial court's certification of the right to appeal in each case provides that appellant had waived his right to appeal.  Although no corrected certifications have been filed, we have no jurisdiction over appellant's appeals.  See 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 pled guilty with a sentencing cap of ten years, even though trial judge mistakenly certified defendant had right of appeal).

Accordingly, we dismiss the appeals.

PER CURIAM