Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-04-456 CR
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GODFREY SAXON NOBLES, Appellant
V.
THE STATE OF TEXAS, Appellee
Jefferson County, Texas
Trial Cause No. 91937
Godfrey Saxon Nobles pleaded guilty to an indictment for the state jail felony offense of evading detention. See Tex. Pen. Code Ann. § 38.04(b)(1) (Vernon 2003). The record reflects Nobles pleaded guilty in exchange for an agreement that his sentence run concurrently with two other cases in which he also entered guilty pleas. The trial court convicted Nobles and sentenced him to two years of confinement in a state jail facility.
Appellate counsel filed a brief that concludes no arguable error is presented in this 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). On April 21, 2005, Nobles was given an extension of time in which to file a pro se brief. We received no response from the appellant. On submission of the appeal, we have reviewed the record and find we lack jurisdiction over the appeal. As we have found no error within our appellate jurisdiction to resolve, we decline to order appointment of new counsel prior to disposing of the appeal. Compare Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). A defendant convicted upon a guilty plea pursuant to a plea bargain agreement, where the punishment assessed does not exceed the agreed punishment recommendation, may appeal only those matters that were raised by written motion and ruled on before trial or after obtaining the trial court's permission to appeal. See Tex. Code Crim. Proc. Ann. art. 44.02 (Vernon 1979); Tex. R. App. P. 25.2(a)(2). The recitations in a certification must be true and supported by the record for the notice of appeal to invoke our appellate jurisdiction. Saldana v. State, 161 S.W.3d 763, 764 (Tex. App.-Beaumont 2005, no pet.). The trial court's certification states this "is not in a plea-bargain case, and the defendant has the right to appeal." At the time Nobles entered his guilty plea, however, the State introduced an "Agreed Punishment Recommendation," signed by the prosecutor, defense counsel, and appellant, wherein it was mutually agreed that in consideration for the guilty plea, the sentence in this case would run concurrently with the sentences in Cause Nos. 88481 and 90545. (1) This constitutes a plea bargain as contemplated by Rule 25.2(a)(2). See Saldana, 161 S.W.3d at 764. Therefore, Nobles had a right to appeal only matters raised by written motion filed and ruled on before trial, or with the trial court's permission. Id. The record does not reflect the disposition of any pre-trial motions.
This was a plea bargained case; thus the trial court's certification is incorrect. Because the record does not reflect any rulings adverse to Nobles on any pre-trial written motions, and Nobles did not obtain the trial court's permission to appeal, we lack jurisdiction over the appeal.
APPEAL DISMISSED.
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CHARLES KREGER
Justice
Submitted on October 10, 2005
Opinion Delivered October 26, 2005
Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.
1. The appeals in those cases were dismissed for lack of jurisdiction. See Nobles v. State, Nos. 09-04-454 CR, 09-04-455 CR, 2004 WL 2827738 (Tex. App.-Beaumont Dec. 8, 2004, no pet.) (Not designated for publication).