Nos. 09-04-194 CR, 09-04-195 CR
Submitted on February 16, 2006.
Opinion Delivered April 19, 2006. DO NOT PUBLISH.
On Appeal from the Criminal District Court, Jefferson County, Texas, Trial Cause Nos. 83949 and 88140. Appeals Dismissed.
Before McKEITHEN, C.J., KREGER and HORTON, JJ.
HOLLIS HORTON, Justice.
This appeal involves two felony cases that the trial court considered together at plea and punishment hearings. The appellant brought an appeal in each case. For purposes of judicial economy, we dispose of the two appeals together. Edward Charles Holland pled guilty to two felony offenses, burglary of a habitation and burglary of a building. The trial court sentenced him to twenty years in prison for the burglary (habitation) offense and to two years in a state jail facility for the burglary (building) offense. The court ordered the sentences to run concurrently. After Holland's retained appellate counsel filed Anders briefs in which he concedes there is no arguable error to present on appeal, Holland filed pro se briefs that each raise two identical issues. Holland asserts the State denied his right to a speedy trial and that his attorney provided ineffective assistance of counsel. Because we conclude Holland's cases involve plea bargains that he cannot appeal, we dismiss his appeals for lack of jurisdiction.
See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); High v. State, 573 S.W.2d 807 (Tex.Crim.App. 1978).
Plea Bargains
In each case, the State indicted Holland on two counts. In the first case, the charges were: (1) burglary of a habitation, a second degree felony, and (2) repeat felony offender. See Tex. Pen. Code Ann. §§ 12.42(b), 30.02 (a)(3), (c)(2) (Vernon 2003 Supp. 2005). In the second case, the charges were: (1) burglary of a building, a state jail felony under Penal Code section 30.02(c)(1), and (2) repeat felony offender. In each case, the prosecutor, defense counsel, and Holland signed a document titled "Agreed Punishment Recommendation." For the first case, the parties "mutually agreed and recommended" to the court that: (1) prosecution should proceed only on Count 1-burglary of a habitation; and (2) that the punishment for the first case would run concurrently with the punishment for the second case. In the second case, the parties mutually agreed that the State would prosecute Holland only on Count 1, and that the punishment for the second case would run concurrently with the punishment for the first case. These agreements resulted in Holland's facing a maximum sentence of twenty years rather than a maximum sentence of ninety-nine years or life. See Tex. Pen. Code Ann. § 12.32 (Vernon 2003) (setting punishment range for first degree felony as life, or for any term of not more than ninety-nine years or less than five years); id. at § 12.33 (setting punishment range for second degree felony as not more than twenty years or less than two years). Had the State proceeded on the repeat felony-offender count in the first case, the punishment established by the Penal Code is a first degree felony rather than a second degree felony. See Tex. Pen. Code Ann. § 12.42(b) (Vernon Supp. 2005). Thus, Holland's bargains capped his maximum sentence at twenty years. Further, the trial court assessed punishment that did not exceed the twenty-year cap agreed to by Holland and the State. Here, the agreed punishment recommendations and the agreement to dismiss counts constitute plea bargains as contemplated by Rule 25.2(a)(2) of the Texas Rules of Appellate Procedure. See Shankle v. State, 119 S.W.3d 808, 813 (Tex.Crim.App. 2003) ("An agreement to dismiss a pending charge, or not to bring an available charge, effectively puts a cap on punishment at the maximum sentence for the charge that is not dismissed."); Saldana v. State, 161 S.W.3d 763, 764 (Tex.App.-Beaumont 2005, no pet.) (finding that a plea bargain existed when State and defendant agreed that in return for defendant's guilty plea, the State would dismiss charges and recommend concurrent sentences to trial court). The trial court's certifications, made pursuant to Rule 25.2, state that these cases are not plea-bargain cases and that the defendant has the right to appeal. However, we have a duty to compare the certification with the record before us to determine if the certification statements are true and supported by the record. See Dears v. State, 154 S.W.3d 610, 614-15 (Tex.Crim.App. 2005); Saldana, 161 S.W.3d at 764. Here, the trial court's certifications are incorrect and the record does not support the certifications. Thus, the incorrect certifications do not invoke our appellate jurisdiction. See Saldana, 161 S.W.3d at 764; see also Waters v. State, 124 S.W.3d 825, 826 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd). A plea-bargaining defendant, such as Holland, may appeal only matters raised by written motion filed and ruled on before trial, or with the trial court's permission to appeal. See Tex.R.App.P. 25.2(a)(2); Griffin v. State, 145 S.W.3d 645, 647-49 (Tex.Crim.App. 2004). While Holland filed two motions for a speedy trial, the record does not show that the trial court ruled on either. Because the record does not reflect any rulings adverse to Holland on pretrial written motions, or that he had the trial court's permission to appeal from a plea bargain, we do not have jurisdiction over his appeals. Anders Brief
After the trial court certified that Holland had the right to appeal, his retained appellate counsel filed a brief concluding the appellate record presented no error that would arguably support an appeal.See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and High v. State, 573 S.W.2d 807 (Tex.Crim.App. 1978). We note that Holland's sentence is within the punishment range authorized by statute. See Tex. Pen. Code Ann. § 12.33 (Vernon 2003). Thus, the record reveals no arguable error meriting further briefing. We find that we lack jurisdiction over the appeals and dismiss them.