Joseph v. State

Full title: RICHARD ROBERT JOSEPH, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Aug 17, 2010

No. 05-09-01555-CR (Tex. App. Aug. 17, 2010)

Opinion

No. 05-09-01555-CR.

Opinion Filed August 17, 2010. DO NOT PUBLISH. Tex. R. App. P. 47

On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F08-58062-J.

Before Justices BRIDGES, FITZGERALD, and FILLMORE.

MEMORANDUM OPINION

Opinion By Justice FILLMORE.

Richard Robert Joseph pleaded guilty to indecency with a child. In accordance with a plea bargain agreement, the trial court assessed punishment at twenty years' imprisonment. The trial court's rule 25.2(d) certification states the case involves a plea bargain and appellant has no right to appeal. Appellant filed a motion for new trial and a notice of appeal. In his sole issue on appeal, appellant asserts the trial court erred by denying his motion for new trial because trial counsel was ineffective, which rendered appellant's guilty plea involuntary. We conclude we lack jurisdiction over the appeal.

In a plea bargain case-that is, a case in which a defendant's plea was guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant-a defendant may appeal only:

(A) those matters that were raised by written motion filed and ruled on before trial, or

(B) after getting the trial court's permission to appeal.

Tex. R. App. P. 25.2(a)(2)(A), (B). The Texas Court of Criminal Appeals has held the voluntariness of a guilty plea may not be raised on appeal following a plea bargain agreement. See Cooper v. State, 45 S.W.3d 77, 81, 83 (Tex. Crim. App. 2001). Rather, the proper avenue for attacking the voluntariness of a negotiated plea is by application for writ of habeas corpus. See id. at 82-83; see Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2009) (procedure for post-conviction writ of habeas). In this case, the trial court assessed punishment at twenty years' imprisonment as agreed to by appellant and the State. Appellant does not complain about a ruling on a pretrial motion nor does he have the trial court's permission to appeal. See Tex. R. App. P. 25.2(a)(2). Instead, although raised as an ineffective assistance of counsel claim, appellant's ultimate challenge is to the voluntariness of his guilty plea. Such a challenge may not be brought on direct appeal from the plea bargained sentence; it must be brought by application for writ of habeas corpus. See Cooper, 45 S.W.3d at 81, 83. We conclude we lack jurisdiction over the issue and the appeal. We dismiss the appeal for want of jurisdiction.