Opinion
No. 01-08-00786-CR
Opinion issued January 21, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 337th District Court, Harris County, Texas, Trial Court Cause No. 1133861.
Panel consists of Justices KEYES, SHARP, and MASSENGALE.
MEMORANDUM OPINION
Appellant, Isaiah Ramon Allen, pled guilty to the felony offense of possession with the intent to deliver cocaine after the State agreed to dismiss a related aggravated robbery case pending against him and "cap" his punishment at thirty years confinement. As part of his plea agreement, appellant also pled true to two enhancement paragraphs, namely (1) that he used and exhibited a deadly weapon in the commission of his offense, and (2) that he was previously convicted of the felony offense of delivery of a controlled substance. As part of the plea procedure, appellant, appellant's counsel, and the State signed a stipulation of evidence which included, among others, the following statements: "I intend to enter a plea of guilty and understand that the prosecutor . . . [has agreed to a pre-sentence investigation and a] cap of 30 years in prison (with deadly weapon ¶) and I agree to that recommendation . . . Further, I waive any right of appeal which I may have should the court accept the foregoing plea bargain agreement between myself and the prosecutor." The stipulation also contains a separate handwritten amendment indicating that the aggravated robbery case is "dismissed as part of plea bargain only." After a pre-sentence investigation and hearing, the trial court sentenced appellant to thirty-years confinement and a $100 fine, a punishment that fell within the agreed punishment cap. Appellant filed a timely motion for new trial, arguing that his plea was involuntary due to ineffective assistance of counsel. Appellant's motion was accompanied by affidavits and included a request for an evidentiary hearing. The court denied appellant's request for an evidentiary hearing and ruled that it would only receive evidence submitted by affidavit. Appellant filed written objections to this ruling which the trial court denied. In his sole issue on appeal, appellant contends that the trial court erred when it failed to grant his request for an evidentiary hearing on his motion for new trial. In his brief, appellant contends that he was entitled to an evidentiary hearing on his motion for new trial because his motion raised ineffective assistance of counsel claims that were not determinable from the record. After appellant filed his brief, this Court abated appellant's appeal and remanded the case to the trial court for a hearing on whether the certification of appeal, which conflicted with the record, needed to be supplemented or amended. After a hearing, a supplemental clerk's record, including an amended certification of right to appeal was filed with this Court. The amended certification stated that that the judgment incorrectly indicated that appellant's plea was made "without an agreed recommendation," when in fact, the plea agreement capped appellant's punishment range at thirty years confinement and provided for the dismissal of a related case. Accordingly, the trial court certified that appellant had no right of appeal. After the abatement hearing on this issue, appellant filed a motion in this Court entitled "Motion for Appellant's Right to Appeal the Denial of his Hearing on Motion for New Trial." In that motion, appellant argues that he has the right to appeal the trial court's refusal to grant him an evidentiary hearing on his motion because he "seeks to appeal this denial and not his sentence." Appellant cites no authorities in support of this proposition. When a defendant pleads guilty pursuant to a plea-bargain agreement and the punishment assessed does not exceed the plea agreement, the defendant may appeal only those matters that were raised by written motion filed and ruled on before trial, or after obtaining the trial court's permission to appeal. TEX. R. APP. P. 25.2(a)(2); see also Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006) (holding that agreement to punishment cap is plea bargain for purposes of Rule 25.2); Shankle v. State, 119 S.W.3d 808, 813-14 (Tex. Crim. App. 2003) (same). A court of appeals has "no authority to address issues that are not authorized by Rule 25.2(a)(2)." Estrada v. State, 149 S.W.3d 280, 283 (Tex. App.-Houston [1st Dist.] 2004, pet. ref'd) (en banc) (per curiam) (citing Woods v. State, 108 S.W.3d 314, 316 (Tex. Crim. App. 2003)). The fact that appellant is challenging the trial court's ruling on a post-conviction motion does not confer jurisdiction on this Court. See Turley v. State, 242 S.W.3d 178, 179 (Tex. App.-Fort Worth 2007, no pet.) (stating that Rule 25.2(a)(2)'s limitations on right of appeal extend to complaints challenging trial court's ruling on motion for new trial or failure to hold hearing on said motion); accord Estrada, 149 S.W.3d at 285 (stating that denial of motion for new trial is not appealable in plea-bargained case without trial court's permission). Appellant has not attempted to appeal matters that were raised by written motion filed and ruled on before trial nor has he obtained the trial court's permission to pursue this appeal, as evidenced by the trial court's amended certification of appellant's right to appeal. The trial court's amended certification of appellant's right to appeal states that this is a plea-bargained case and appellant has no right to appeal and the record supports the certification. We must dismiss an appeal "without further action, regardless of the basis for the appeal" if the trial court's certification shows there is no right to appeal. Chavez, 183 S.W.3d at 680. We note, however, that appellant may still submit his ineffective assistance of counsel claims for review on the merits in an application for writ of habeas corpus. Bone v. State, 77 S.W.3d 828, 837 n. 30 (Tex. Crim. App. 2002); Thompson v. State, 9 S.W.3d 808, 814-15 (Tex. Crim. App. 1999). Accordingly, we dismiss the appeal for lack of jurisdiction. Any pending motions are denied as moot.
See TEX. HEALTH SAFETY CODE ANN. § 481.112(a), (e) (Vernon Supp. 2008) (possession with intent to deliver two-hundred grams or more but less than four-hundred grams of controlled substance a first degree felony).
Appellant faced four separate indictments: cause number 1133535 (aggravated robbery), cause number 1133681 (possession with the intent to deliver cocaine), cause number 1133863 (felon in possession of a weapon) and cause number 1133862 (possession of a controlled substance). Cause number 1133535 was dismissed as part of appellant's plea to cause number 1133861. Cause numbers 1133863 (felon in possession of a weapon) and 1133862 (possession of a controlled substance) were apparently disposed of separately and neither are the subject of this appeal.
Appellant asked to withdraw his guilty plea prior to the commencement of his PSI hearing, but the court denied his request. Appellant does not challenge that ruling in this appeal.
The record does not contain an order disposing of appellant's motion for new trial; therefore, we presume the motion was overruled by operation of law. See TEX. R. APP. P. 21.8(c).