Summary
holding case was a plea-bargain case within the meaning of 25.2 when there was no agreement as to the term of confinement, but there was an agreement that a sentence for one offense would run concurrently with sentences for two other offenses and another charge would be dismissed
Summary of this case from Bernal v. StateOpinion
No. 04-06-00859-CR.
Delivered and Filed: January 31, 2007. DO NOT PUBLISH.
Appeal from the 175th Judicial District Court, Bexar County, Texas, Trial Court No. 2005-CR-8883, Honorable Mary Roman, Judge Presiding.
Sitting: ALMA L. LÓPEZ, Chief Justice, CATHERINE STONE, Justice, STEVEN C. HILBIG, Justice.
MEMORANDUM OPINION
DISMISSED Naomi Lane agreed to plead guilty to aggravated robbery in exchange for the State's agreement that (1) Lane's sentence would run concurrent with the sentences imposed for two other aggravated robberies and (2) the State would dismiss a fourth charge of aggravated robbery arising out of a separate incident. There was no agreement as to the term of confinement. As part of her plea-bargain, Lane signed a separate "Waiver of Appeal" that states: I understand that upon my plea of guilty or nolo contendere, where the punishment does not exceed that recommended by the prosecutor and agreed to by me, my right to appeal will be limited to only: (1) those matters that were raised by written motion filed and ruled on before trial, or (2) other matters on which the trial court gives me permission to appeal. I understand that I have this limited right to appeal. However, as part of my plea bargain agreement in this case, I knowingly and voluntarily waive my right to appeal under (1) and (2) in exchange for the prosecutor's recommendation, provided that the punishment assessed by the court does not exceed our agreement. The trial court imposed sentence in accordance with the agreement and signed a certificate stating that this "is a plea-bargain case, and the defendant has NO right of appeal." and "the defendant has waived the right of appeal." See Tex. R. App. P. 25.2(a)(2). Lane timely filed a notice of appeal. The clerk's record, which contains a written plea bargain agreement, establishes the punishment assessed by the court does not exceed the punishment recommended by the prosecutor and agreed to by the defendant. Accordingly, this is a "plea bargain case" within the meaning of Rule 25.2(a)(2) of the Texas Rules of Appellate Procedure. See Shankle v. State, 119 S.W.3d 808 (Tex.Crim.App. 2003) (holding that "[a]n agreement to dismiss a pending charge . . . effectively puts a cap on punishment at the maximum sentence for the charge that is not dismissed" and if the agreement is complied with, the defendant's right of appeal is limited by the Rules of Appellate Procedure). Ordinarily, "[i]n a plea bargain case . . . 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). However, a defendant may waive this limited right to appeal. See Willis v. State, 121 S.W.3d 400, 403 (Tex.Crim.App. 2003). The trial court's certification therefore appears to accurately reflect that this is a plea bargain case, Lane does not have a right to appeal, and she waived any limited right to appeal. See Dears v. State, 154 S.W.3d 610 (Tex.Crim.App. 2005) (holding that court of appeals should review clerk's record to determine whether trial court's certification is accurate). Lane's appellate counsel has filed a letter with the court stating that she has reviewed the record and can find no right of appeal. We therefore dismiss this appeal.