Opinion
No. 05-09-01369-CR
Opinion issued June 29, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 4 Dallas County, Texas, Trial Court Cause No. F07-71824-K.
Before Justices RICHTER, LANG-MIERS, and MYERS.
MEMORANDUM OPINION
On August 21, 2009, Jose Adrian Vasquez pleaded guilty pursuant to a plea agreement to indecency with a child. The plea agreement provided that the trial court would defer adjudication of guilt, place appellant on seven years' community supervision, and assess a $2000 fine. The plea agreement also included appellant's waiver of his right to appeal. See Blanco v. State, 18 S.W.3d 218 (Tex. Crim. App. 2000). The trial court took appellant's guilty plea, but postponed disposition of the matter. The disposition hearing was set for October 30, 2009. On October 30, 2009, appellant filed a motion to withdraw his guilty plea, asserting the plea was involuntary. Following a hearing, the trial court denied the motion and, in accordance with the plea agreement, deferred adjudication of guilt, placed appellant on seven years' community supervision, and assessed a $2000 fine. The trial court's rule 25.2(d) certification states both that the case involves a plea bargain and appellant has no right to appeal and that appellant waived his right to appeal. See Tex. R. App. P. 25.2(d). Appellant filed a brief raising one issue: the trial court erred by denying appellant's motion to withdraw his plea. 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 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 that 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. 11.072 (Vernon 2005) (habeas corpus procedure in community supervision case). In this case, the trial court assessed punishment as agreed to by appellant at the original guilty plea hearing. See Tex. R. App. P. 25.2(a)(2). Appellant's complaint is not about the trial court's ruling on a pretrial motion, nor does he have the trial court's permission to appeal. See id. Rather, although phrased in terms of the trial court's denial of his motion to withdraw his plea, the basis of appellant's complaint is that his guilty plea was not voluntary. Such a challenge may not be brought on direct appeal from the plea bargained deferred adjudication. See Cooper, 45 S.W.3d at 81, 83. Therefore, we conclude we lack jurisdiction over the issue and the appeal. We dismiss the appeal for want of jurisdiction.