NOE PENA JR v. THE STATE OF TEXAS

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

NOE PENA, JR., Appellant v. THE STATE OF TEXAS, Appellee

NO. 01-16-00160-CR

Decided: January 31, 2017

Panel consists of Justices Keyes, Higley, and Lloyd.

MEMORANDUM OPINION

Appellant, Noe Pena, Jr., pursuant to an agreement with the State, pleaded guilty to the felony offense of possession with intent to deliver a controlled substance, namely, cocaine, weighing more than four grams but less than 200 grams, and true to the allegations in two enhancement paragraphs that he had been twice previously convicted of felony offenses.1 The trial court accepted the plea agreement, found appellant guilty, and assessed his punishment at confinement for fifteen years. The trial court certified that this is a plea-bargained case and appellant has no right of appeal, and appellant waived the right of appeal. Appellant filed a pro se notice of appeal. We dismiss the appeal.

In a plea-bargained case, a defendant may appeal only those matters that were raised by written motion and ruled on before trial or after obtaining the trial court's permission to appeal. TEX. CODE CRIM. PROC. ANN. art. 44.02 (West 2006); TEX. R. APP. P. 25.2(a)(2). Further, a valid waiver of appeal prevents a defendant from appealing without the trial court's consent. Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003); see Ex parte Delaney, 207 S.W.3d 794, 799 (Tex. Crim. App. 2006) (“One way to indicate that the waiver was knowing and intelligent is for the actual punishment ․ to have been determined by a plea agreement when the waiver was made.”). The certification is included in the record and states that the case is a plea-bargained case and appellant has no right of appeal, and appellant has waived his right of appeal. See TEX. R. APP. P. 25.2(a)(2), (d). And, the record supports the trial court's certification. See Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005). 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 the appeal for want of jurisdiction. We dismiss all pending motions as moot.

FOOTNOTES

1.   See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (d) (West 2010).

PER CURIAM

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