Opinion issued May 5, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00771-CR
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WILLIAM EDWARD HERNANDEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 177th District Court
Harris County, Texas
Trial Court Case No. 1265866
MEMORANDUM OPINION
Pursuant to an agreement with the State that punishment be capped at
confinement for thirty years, appellant, William Edward Hernandez, pleaded guilty
to the felony offense of murder.1 The trial court accepted the plea agreement and,
in accordance with the agreement with the State, assessed appellant’s punishment
at confinement for twenty-six years. The trial court certified that this is a
plea-bargained case and appellant has no right of appeal. Appellant filed a pro se
notice of appeal. We dismiss the appeal.
In a plea-bargained case, a defendant 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. TEX. CODE CRIM. PROC. ANN. Art. 44.02 (West
2006); TEX. R. APP. P. 25.2(a)(2). An appeal must be dismissed if a certification
showing that the defendant has a right of appeal has not been made part of the
record. TEX. R. APP. P. 25.2(d).
The clerk’s record reflects that appellant pleaded guilty in exchange for the
State’s recommendation that punishment be capped at confinement for thirty
years.2 An agreement to a recommended cap on punishment constitutes a plea
bargain. See Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003);
1
See TEX. PENAL CODE ANN. § 19.02 (West 2011).
2
The trial court’s judgment states, “Term of Plea Bargain: Without a
Recommendation.” Such language does not convert the plea to an open plea when,
as here, the plea was entered pursuant to an agreed sentencing cap. See Threadgill
v. State, 120 SW.3d 871, 872 (Tex. App.—Houston [1st Dist.] 2003, no pet.)
(holding statement in record indicating there was no agreed recommendation did
not convert proceeding into open plea when plea was entered pursuant to agreed
sentencing cap).
2
Wilson v. State, 264 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.] 2007, no
pet.); Waters v. State, 124 S.W.3d 825, 826 (Tex. App.—Houston [14th Dist.]
2003, pet. ref’d). Here, the trial court’s certification is included in the record and
states that this is a plea-bargained case and appellant has no right of appeal. See
TEX. R. APP. P. 25.2(a)(2). We conclude that the record supports the trial court’s
certification. See Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005).
The trial court did not rule adversely to appellant on any pre-trial matters
and did not give appellant permission to appeal. See TEX. R. APP. P. 25.2(a)(2).
Because appellant has no right of appeal, we must dismiss this appeal. See Chavez
v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006) (“A court of appeals, while
having jurisdiction to ascertain whether an appellant who plea-bargained is
permitted to appeal by Rule 25.2(a)(2), must dismiss a prohibited appeal without
further action, regardless of the basis for the appeal.”).
Accordingly, we dismiss the appeal for want of jurisdiction. We dismiss all
pending motions as moot.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Brown and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
3
William Edward Hernandez v. State
Combined Opinion