. ----------- Jose Damian Jacobo-Salas, Appellant v. State of Texas, Appellee

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Court of Appeals of Texas, Houston (1st Dist.).

. ----------- Jose Damian Jacobo-Salas, Appellant v. State of Texas, Appellee

NO. 01-09-00899-CR

Decided: May 27, 2010

Panel consists of Justices Jennings, Hanks, and Bland.

MEMORANDUM OPINION

In exchange for appellant Jose Jacobo-Salas's plea of guilty to felony possession of a controlled substance with intent to deliver, namely, more than 400 grams of cocaine, and using and exhibiting a deadly weapon during the commission that offense, the State agreed to a sentencing cap of twenty-five years' confinement and a maximum fine of $10,000.   See Tex. Health & Safety Code Ann. § 481.112(a), (e) (Vernon Supp.2009).   In accordance with the plea bargain, the trial court assessed punishment at the agreed maximum.   On appeal, Jacobo-Salas contends that the trial court erred in failing to conduct a hearing on his motion for new trial.   According to the record, however, Jacobo-Salas waived his right to appeal, and the trial court did not grant him a right to appeal.   We therefore dismiss for lack of jurisdiction.

Background

In connection with his guilty plea, Jacobo-Salas acknowledged in writing that the trial court specifically advised him:

if you pled guilty or no contest and accepted the punishment recommended by the prosecutor ․ you cannot appeal his conviction unless this Court gives you permission.   If you waived or gave up your right to appeal, you cannot appeal your conviction.

Following his sentencing, Jacobo-Salas moved for new trial, contending that ineffective assistance of counsel rendered his plea involuntary.   The record shows that trial court set the motion for new trial for hearing on April 21, 2009, and later reset the motion for hearing on May 4, 2009.   The record, however, does not include a request to reset the hearing, an order resetting the hearing, a reporter's record of a hearing, or an order on the motion.

Discussion

According to Texas Rule of Appellate Procedure 25.2(a)(2),

A defendant in a criminal case has the right of appeal․  The trial court shall enter a certification of the defendant's right of appeal in every case in which it enters a judgment of guilt or other appealable order.   In a plea bargain case-that is, a case in which a defendant's plea was guilty ․ 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)(2).   Unless the trial court gives its permission for the appeal of an agreed plea-bargain case that has no pretrial motions, we have no option but to dismiss it.  Menjivar v. State, 264 S.W.3d 137, 141 (Tex.App.-Houston [1st Dist.] 2007, no pet.).   We must dismiss the appeal “without further action, regardless of the basis for the appeal” if the trial court's certification shows there is no right to appeal.  Chavez v. State, 183 S.W.3d 675, 680 (Tex.Crim.App.2006);  Terrell v. State, 245 S.W.3d 602, 604-605 (Tex.App.-Houston [1st Dist.] 2007, no pet).

The Texas Court of Criminal Appeals has held that agreement to a punishment cap, such as Jacobo-Salas's agreement, is a plea bargain requiring application of Rule 25.2.   See Chavez, 183 S.W.3d at 680;  Shankle v. State, 119 S.W.3d 808, 813-14 (Tex.Crim.App.App.2003).   The trial court certified that “this criminal case ․ is a plea-bargain case, and the defendant has NO right of appeal.”   The record shows that Jacobo-Salas received the necessary admonishments about the consequences of his plea, including the waiver of his right to appeal.   Jacobo-Salas initialed each admonishment and signed the admonishments form.   As a result, we have no jurisdiction over his appeal.1  See Tex.R.App. P. 25.2(a)(2).

Conclusion

As reflected in the trial court's certification, Jacobo-Salas waived his right to appeal when he accepted the State's offer to cap his maximum punishment in exchange for his guilty plea.   We therefore dismiss the appeal for want of jurisdiction.

FOOTNOTES

FN1. Jacobo-Salas may still submit his ineffective assistance of counsel claims for review on the merits in an application for writ of habeas corpus.  Bone v. State, 77 S.W.3d 828, 837 n.30 (Tex.Crim.App.2002);  Thompson v. State, 9 S.W.3d 808, 814-15 (Tex.Crim.App.1999)..  FN1. Jacobo-Salas may still submit his ineffective assistance of counsel claims for review on the merits in an application for writ of habeas corpus.  Bone v. State, 77 S.W.3d 828, 837 n.30 (Tex.Crim.App.2002);  Thompson v. State, 9 S.W.3d 808, 814-15 (Tex.Crim.App.1999).

Jane Bland Justice

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