Opinion issued August 12, 2010
In The
Court of Appeals
For The
First District of Texas
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NO. 01-09-00722-CR
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Darrick Dwayne Moore, Appellant
V.
The State of Texas, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Case No. 1151767
MEMORANDUM OPINION
Appellant, Darrick Dwayne Moore, pleaded guilty to the offense of false statement to obtain credit with an agreement from the State that his punishment would not exceed confinement for 30 years. Along with the plea of guilty in trial court cause number 1151767, appellant, appellant=s counsel, and the State signed a stipulation of evidence which included, among others, the following statements: AI intend to enter a plea of guilty and understand that the prosecutor will recommend that my punishment should be set Awithout an agreed recommendationB with a maximum punishment of 30 years.@ The plea papers also include the notation that the State agrees “not to prosecute Lisa Moore for any criminal indictment in the case which he is pleading” or in “which the defendant has been charged.” Appellant also stated that he agreed to that recommendation. The plea papers contained a written waiver of right to appeal that states AI waive my right of appeal which I may have should the court accept the foregoing plea bargain agreement between me and the prosecutor.@ In accordance with appellant=s plea bargain agreement with the State to cap punishment at confinement for 30 years in trial court cause number 1151767, the trial court sentenced appellant to confinement for twenty eight years, a punishment that fell within the agreed punishment cap.
Appellant did not request the trial court=s permission to appeal any pre-trial matters, and the trial court did not give appellant permission to appeal. Appellant filed a timely pro se notice of appeal.
In a plea-bargained case in which the punishment assessed does not exceed the plea agreement, 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); see 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 (Tex. Crim. App. 2003) (same).
The trial court=s certification of appellant=s right to appeal states that this is a plea-bargained case and appellant has no right to appeal. The trial court=s certification of right to appeal is signed by the trial court judge, appellant, and appellant=s counsel. The certification that appellant has no right of appeal, as shown on the "Trial Court's Certification of Right of Appeal" form signed by the trial court, is supported by the record that shows that appellant has no right of appeal due to the agreed plea bargain. Tex. R. App. P. 25.2(a). We must dismiss an appeal Awithout 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.
An appellate court has the power to correct and reform a trial court judgment to make the record speak the truth when it has the necessary data and information to do so. Nolan v. State, 39 S.W.3d 697, 698 (Tex.App.‑Houston [1st Dist.] 2001, no pet.) (citing Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.‑Dallas 1991, pet. ref'd)); see also TEX.R.APP. P. 43.2(b). The record shows that appellant pleaded guilty with an agreement with the State to cap his punishment at 30 years. However the judgment states incorrectly that the plea was Awithout an agreed recommendation.@ We reform the trial court's judgment to reflect that appellant pleaded guilty Awith an agreed punishment recommendation to cap punishment at 30 years.@
Accordingly, we dismiss the appeal for lack of jurisdiction.
Any pending motions are denied as moot.
PER CURIAM
Panel consists of Justices Keyes, Hanks, and Higley.
Do not publish. Tex. R. App. P.