Opinion
No. 14-04-00335-CR
Memorandum Opinion filed July 29, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 230th District Court, Harris County, Texas, Trial Court Cause No. 952,965. Dismissed.
Panel consists of Justices FOWLER, EDELMAN, and SEYMORE.
MEMORANDUM OPINION
Appellant entered a guilty plea to the offense of murder. The plea bargain document shows the State agreed to seek punishment with a "cap" of 35 years. On January 21, 2004, the trial court sentenced appellant to confinement for 30 years in the Institutional Division of the Texas Department of Criminal Justice. Appellant filed a pro se notice of appeal. The trial court entered a certification of the defendant's right to appeal in which the court certified that this is not a plea bargain case, and the defendant has the right of appeal. Because we find appellant has no right to appeal, we dismiss. In a plea bargain case, a 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). We held in Waters v. State, 124 S.W.2d 825, 826 (Tex. App.-Houston [14th Dist.] 2003, no pet.) that a conviction based on an agreement that places a "cap" on punishment for the charged offense is a plea agreement and is subject to the restrictions of Rule 25.2(a)(2). We further held that a valid waiver of the right of appeal prevents a defendant from appealing with the trial court's consent. Id. In this case, appellant's plea document shows that the State agreed to seek punishment "capped" at 35 years' imprisonment. Although the trial court signed a Certification of the Right of Defendant's Right of Appeal, finding that this was not a plea bargain case and that appellant had the right of appeal, this is inconsistent with the record. See Waters, 124 S.W.2d at 826. Because the record does not reflect that appellant had the trial court's consent or permission to appeal, and because appellant's brief indicates he does not seek to appeal a matter raised by written motion filed and ruled on before trial, we have no jurisdiction over the appeal. The plea document further contains a waiver of the right of appeal "should the court accept the foregoing plea bargain agreement between myself and the prosecutor. Because the trial court accepted the plea agreement and sentenced appellant at 30 years, we find this to be a valid negotiated waiver of the right of appeal. For these reasons, we dismiss the appeal.
We need not request the trial court to amend the certification before we dismiss. See Waters, 124 S.W.2d at 827 n. 6.