WALTER BYRON ROSE v. THE STATE OF TEXAS (2017)

MEMORANDUM OPINION

Appellant, Walter Byron Rose, pleaded guilty to the first-degree felony offense of aggravated sexual assault of a child—under fourteen years, without an agreed recommendation.¹ In exchange for appellant's plea, the State agreed to reduce the charge from continuous sexual abuse of a child and to recommend a punishment cap of forty years' confinement.² In accordance with his plea bargain with the State, the trial court found appellant guilty and assessed his punishment at forty years' confinement. The trial court certified that this was a plea-bargain case and that appellant had no right of appeal. See TEX. R. APP. P. 25.2(a)(2). Appellant timely filed a pro se notice of appeal and the trial court appointed him counsel. See id. 26.2(a)(1). We dismiss this appeal for want of jurisdiction.

In a plea-bargain case, a defendant may only appeal those matters that were raised by written motion filed and ruled on before trial or after getting the trial court's permission to appeal. TEX. CODE CRIM. PROC. ANN. art. 44.02 (West Supp. 2016); TEX. R. APP. P. 25.2(a)(2). An appeal must be dismissed if a certification showing that the defendant has the right of appeal has not been made part of the record. TEX. R. APP. P. 25.2(d); see Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005). Agreements to plead guilty in exchange for the State's reduction of a charge or for a recommendation of a cap on punishment are plea bargains for purposes of Rule 25.2(a)(2). See Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003) (stating two types of plea bargains are charge-bargaining, where defendant pleads guilty to charged offense or to lesser or related offense, and sentence-bargaining, where State recommends to court on sentences, including recommended “cap” on sentencing); Threadgill v. State, 120 S.W.3d 871, 872 (Tex. App.—Houston [1st Dist.] 2003, no. pet.).

Here, the trial court's certification, included in this Court's records, states that this is a plea-bargain case and that appellant has no right of appeal, and the trial court did not give its permission to appeal any matters. See TEX. R. APP. P. 25.2(a)(2), (d); Dears, 154 S.W.3d at 615. The records filed in this Court confirm that appellant pleaded guilty to the reduced charge of aggravated sexual assault of a child—under fourteen years, in exchange for the State's recommendation that sentencing be capped at forty years' confinement. Thus, the records support the trial court's certification. See Dears, 154 S.W.3d at 615; Shankle, 119 S.W.3d at 813. Because appellant has no right of appeal, we must dismiss this appeal. See Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006) (“A court of appeals, while having jurisdiction to ascertain whether an appellant who plea-bargained is permitted to appeal by Rule 25.2(a)(2), must dismiss a prohibited appeal without further action, regardless of the basis for the appeal.”).

Accordingly, we dismiss this appeal for want of jurisdiction. See TEX. R. APP. P. 43.2(f).

FOOTNOTES

1.   See TEX. PENAL CODE ANN. § 22.021(a)(1)(B), (a)(2)(B), (e) (West Supp. 2016).

2.   See TEX. PENAL CODE ANN. §§ 12.32(a), 21.02(b), (h) (West Supp. 2016).

PER CURIAM