Opinion
No. 06-05-00020-CR
Submitted: March 2, 2005.
Decided: March 3, 2005. DO NOT PUBLISH.
On Appeal from the 337th Judicial District Court, Harris County, Texas, Trial Court No. 998116.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
Bunny Ray Martin appeals from his aggravated assault conviction on his plea of guilty under a plea agreement. The trial court set punishment at ten years' imprisonment, in accordance with the terms of the plea agreement. The trial court filed a certification of Martin's right of appeal in accordance with Rule 25.2(a)(2) of the Texas Rules of Appellate Procedure, stating that this "is a plea-bargain case, and the defendant has NO right of appeal." See Tex.R.App.P. 25.2(a)(2). We have jurisdiction to determine whether we have jurisdiction. Olivo v. State, 918 S.W.2d 519, 523 (Tex.Crim.App. 1996). Martin entered into a plea agreement that the trial court did not exceed at sentencing. Under Rule 25.2(a)(2), Martin was entitled to appeal only "those matters that were raised by written motion filed and ruled on before trial" or "after getting the trial court's permission to appeal." Neither of those conditions appear, and the trial court certified that Martin has no right of appeal. See Comb v. State, 101 S.W.3d 724, 725 (Tex.App.-Houston [1st Dist.] 2003, no pet.). We are also without jurisdiction to consider the voluntariness of Martin's plea. In Cooper v. State, 45 S.W.3d 77 (Tex.Crim.App. 2001), the Texas Court of Criminal Appeals held that Tex.R.App.P. 25.2(a)(2)(B) restricted a defendant from appealing the voluntariness of his or her plea without the trial court's permission. Id. at 79. The record does not show that Martin has the trial court's permission to appeal the voluntariness of his plea. Consequently, we are without jurisdiction to consider that issue. We dismiss the appeal for want of jurisdiction.
A plea agreement by its nature incorporates a voluntary and understanding plea of guilty, and thus its process can only be triggered when the plea agreement and guilty plea are voluntarily and understandably made; however, in the Cooper case, the Texas Court of Criminal Appeals determined that an involuntary plea may be raised by a motion for new trial and habeas corpus, but not on appeal. We are bound to follow this ruling. Cooper, 45 S.W.3d 77.