Opinion by Justice Francis

On Appeal from the 439th Judicial District Court Rockwall County, Texas
Trial Court Cause No. 2-15-474

MEMORANDUM OPINION

Before Chief Justice Wright and Justices Francis and Schenck
Opinion by Justice Francis

Juan Felipe Zendejas entered a negotiated plea of guilty to the offense of possession of a controlled substance, tetrahydrocannabinol, in an amount of one gram or more but less than four grams. Under the terms of the plea bargain, adjudication of appellant's guilt was deferred and he was placed on community supervision for five years and assessed a $1,000 fine. As further consideration for the plea bargain, appellant waived his right to appeal. The trial court prepared and signed a certification of the right to appeal stating appellant had no right to appeal.

After the trial court accepted the plea bargain and placed appellant on deferred adjudication, appellant filed a motion for new trial in which he alleged he received ineffective assistance of counsel in connection with his plea, thus rendering it involuntary. Specifically, appellant contended that trial counsel failed to conduct a proper investigation that would have revealed his defenses and advised him improperly that his probation would "go away" when he left the country or was deported to Mexico as an undocumented immigrant. Because he would be unable to report as directed, appellant argued, he had entered into a plea bargain that would be impossible for him to fulfill. The motion for new trial was overruled by operation of law seventy-five days after filing.

Appellant filed a timely notice of appeal in this case. Because the trial court had certified appellant did not have the right to appeal and further because the plea bargain papers reflect appellant waived his right to appeal, this Court transmitted to counsel a letter requesting letter briefs from the parties addressing whether the Court has jurisdiction over the appeal. After reviewing the letter briefs filed, we conclude we do not have jurisdiction.

A defendant who accepts punishment under a plea bargain is limited to appealing pretrial rulings on written motions unless the trial court grants permission to appeal. See TEX. R. APP. P. 25.2(a)(2); Carrender v. State, 155 S.W.3d 929, 931 (Tex. App.—Dallas 2005, no pet.). Further, when an appellant voluntarily waives his right of appeal to secure the benefits of a plea bargain agreement, a subsequent notice of appeal fails to "initiate the appellate process" giving jurisdiction to this Court. See Lundgren v. State, 434 S.W.3d 594, 599 (Tex. Crim. App. 2014).

The general rule regarding waiver of the right to appeal is subject to an apparent exception for situations in which the State breaches an executed plea bargain agreement. See Bitterman v. State, 180 S.W.3d 139, 142-43 (Tex. Crim. App. 2005). The exception rests upon the United States' Supreme Court's position that "when a plea bargain rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Id. (quoting Santobello v. New York, 404 U.S. 257, 262 (1971)); see also Ex parte Cox, 482 S.W.3d 112, 116-17 (Tex. Crim. App. 2016) (after a plea bargain is accepted, a defendant has a right to enforce the state's part of the bargain). A defendant can preserve the issue of the State's breach by raising the issue in a motion for new trial. Bitterman, 180 S.W.3d at 144. Although appellant contended in his motion for new trial that the State breached the plea bargain agreement by failing to advise him that he would be unable to complete his probation, we conclude his case is distinguishable from Bitterman. Appellant's legal advice about the merits and effect of entering a plea bargain came from his trial counsel, not from the State. Appellant's motion for new trial did not show that the State breached any promises to appellant arising from the plea bargain agreement. Rather, it shows appellant is unhappy with the deal he negotiated.

On appeal, appellant contends that because he raised the issue of voluntariness of his plea and ineffective assistance of counsel in his motion for new trial, this Court may review those issues even though they were not raised prior to the entry of the deferred adjudication order. Appellant further contends the Court should be able to review the trial court's determination not to grant him an evidentiary hearing on his motion for new trial raising contested issues of fact. Relying on rule 25.2 and Lundgren, we disagree.

Appellant's notice of appeal, coming after entry of a plea bargain agreement and his waiver of the right to appeal, was not effective to trigger this Court's jurisdiction. See Lundgren, 434 S.W.3d at 599. The waiver of the right to appeal did not, however also waive appellant's right to file a motion for new trial. See id. at 600. As the court of criminal appeals explained:

when a motion for new trial is filed, the trial court has the opportunity to reconsider the proceedings and to correct any errors it may agree occurred in the defendant's trial by setting aside the defendant's finding or verdict of guilt or sentencing. See TEX. R. APP. P. 21.1, 21.9(a). In contrast, an appeal is an opportunity for a defendant to argue to a different tribunal that his conviction was flawed despite the trial judge's or jury's conclusion to the contrary.

Because appellant entered into a plea bargain agreement and waived his right to appeal, his notice of appeal was ineffective to invoke this Court's jurisdiction to consider matters raised in his motion for new trial. See TEX. R. APP. P. 25.2(a)(2); Lundgren, 434 S.W.3d at 599-600; Woods, 108 S.W.3d at 316; Whitfield, 111 S.W.3d at 789-90.

We dismiss this appeal for want of jurisdiction.

/Molly Francis/

MOLLY FRANCIS

JUSTICE Do Not Publish
TEX. R. APP. P. 47
160848F.U05

JUDGMENT

On Appeal from the 439th Judicial District Court, Rockwall County, Texas
Trial Court Cause No. 2-15-474.
Opinion delivered by Justice Francis. Chief Justice Wright and Justice Schenck participating.

Based on the Court's opinion of this date, the appeal is DISMISSED. Judgment entered October 17, 2016.