Opinion
No. 05-04-00490-CR
Opinion Filed September 14, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F03-52750-SJ. Dismissed.
Before Justices WHITTINGTON, MOSELEY, and LANG-MIERS.
MEMORANDUM OPINION
Wesley Ray Adams, Jr. appeals his conviction for aggravated assault with a deadly weapon. On appeal, appellant's attorney filed a brief in which she concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807, 811 (Tex.Crim.App. [Panel Op.] 1978). Appellant filed a pro se response to counsel's brief. In four grounds, appellant contends his guilty plea was involuntary and he received ineffective assistance of counsel. We dismiss the appeal for want of jurisdiction. After jury selection, appellant expressed his desire to withdraw his not guilty plea and to plead guilty in exchange for the State's recommendation that punishment should not exceed twenty years. Appellant and the State executed plea papers agreeing to these terms. After admonishing appellant of the consequences of changing his plea, appellant withdrew his not guilty plea and entered a plea of guilty to the jury. The trial court ordered the jury to return a verdict of guilty, after which it dismissed the jury. During the punishment phase, appellant confirmed that he chose to waive a jury trial and enter a guilty plea to the jury and that he wanted the court to assess punishment. Appellant asked the trial court for a minimal sentence coupled with drug treatment in the penitentiary. The State recommended a twenty-year sentence in accordance with its plea agreement. The trial court assessed punishment at sixteen years confinement. In his pro se response, appellant contends his plea was involuntary and he received ineffective assistance of counsel. Because of this, appellant contends his guilty plea amounted to a coerced confession and violated his right against self-incrimination. The trial court entered a rule 25.2 certification of the right of appeal ("CORTA") stating this case "is not a plea bargain case, and the defendant has the right of appeal." See Tex.R.App.P. 25.2. Under rule 25.2, a defendant who pleads guilty in a criminal case and whose punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant may only appeal matters raised by written motion filed and ruled on before trial or if the trial court grants permission to appeal. Id. In this case, the record shows that appellant changed his mind about a jury trial and decided to plead guilty. However, rather than accepting his plea, the trial court required appellant to plead guilty to the jury, even though the jury was not going to assess punishment. Rule 25.2 makes no distinction between a guilty plea to the jury and a guilty plea to the court. See id. And we have found no authority that states rule 25.2 would not apply to the circumstances of this case. Additionally, the State's agreement to cap punishment at twenty years is a plea bargain for purposes of rule 25.2. See Shankle v. State, 119 S.W.3d 808, 813 (Tex.Crim.App. 2003); Carender v. State, 155 S.W.3d 929, 931 (Tex.App.-Dallas 2005, no pet.); Threadgill v. State, 120 S.W.3d 871, 872 (Tex.App.-Houston [1st Dist.] 2003, no pet.). Applying the plain language of the rule, we conclude appellant's plea of guilty to the jury, coupled with the State's agreement on punishment, is a plea bargain case for purposes of rule 25.2. The trial court orally admonished appellant that if the punishment the court assessed did not exceed the twenty years recommended by the State, appellant would have no right of appeal. However, the trial court's CORTA disagrees with the oral admonishments and the record of the plea bargain. When a trial court's CORTA disagrees with the record, we are not bound by the defective CORTA. See Dears v. State, 154 S.W.3d 610, 614 (Tex.Crim.App. 2005); Saldana v. State, 161 S.W.3d 763, 764 (Tex.App.-Beaumont 2005, no pet.). Because appellant pleaded guilty and his punishment did not exceed the cap recommended by the State, we have no jurisdiction to review appellant's contentions. See Griffin v. State, 145 S.W.3d 645, 647-49 (Tex.Crim.App. 2004); see also Woods v. State, 108 S.W.3d 314, 316 (Tex.Crim.App. 2003); Cooper v. State, 45 S.W.3d 77, 81 (Tex.Crim.App. 2001) (interpreting former rule 25.2(b)(3) as precluding voluntariness and ineffective assistance contentions in appeals from negotiated guilty pleas). The record does not show any adverse rulings on pretrial motions or that the trial court gave appellant permission to appeal. As a result, we dismiss the appeal for want of jurisdiction. See Saldana, 161 S.W.3d at 764.
The trial court's written judgment reflects a $1,000 fine that was not orally pronounced in appellant's presence. In light of Griffin v. State, discussed infra, we conclude we do not have jurisdiction to delete the fine.