Opinion issued December 1, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00276-CR
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EDWARD BERNARD DAVENPORT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from 351st District Court
Harris County, Texas
Trial Court Cause No. 1393017
MEMORANDUM OPINION
Appellant, Edward Bernard Davenport, pleaded guilty to the third-degree
felony offense of failure to comply with sex offender registration requirements,
with the agreed recommendation that he receive two years’ confinement. See TEX.
CODE CRIM. PROC. ANN. art. 62.102(a), (b)(2) (West Supp. 2014). On February 13,
2014, the trial court assessed appellant’s punishment at two years’ confinement, in
accordance with the terms of his plea bargain with the State. The trial court
certified that this is a plea-bargain case and that appellant has no right of appeal.
Nevertheless, appellant timely filed a pro se notice of appeal on March 7,
2014. The trial court appointed James Sidney Crowley as appellant’s appellate
counsel, who filed a motion to withdraw with an Anders brief stating that the
record presents no non-frivolous issues or reversible error and that, therefore, this
appeal is without merit and is frivolous. See Anders v. California, 386 U.S. 738,
87 S. Ct. 1396 (1967). Appellant has not filed any response to his counsel’s
Anders brief. We dismiss the appeal for want of jurisdiction.
An appeal must be dismissed if a certification showing that the defendant
has the right of appeal has not been made part of the record. TEX. R. APP. P.
25.2(d); see Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005). The
trial court’s certification, which is included in the clerk’s record, states that this is a
plea-bargain case and that appellant has no right of appeal. See TEX. R. APP. P.
25.2(a)(2), (d).
In a plea-bargain case—where a defendant pleaded guilty and the
punishment did not exceed the punishment recommended by the prosecutor and
agreed to by the defendant, as here—a defendant may only appeal those matters
that were raised by written motion filed and ruled on before trial or after getting the
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trial court’s permission to appeal. TEX. CODE CRIM. PROC. ANN. art. 44.02 (West
Supp. 2014); TEX. R. APP. P. 25.2(a)(2). Here, the clerk’s record contains plea
information, waiver, and admonishment papers indicating that appellant was
indicted for failure to comply with sex offender registration requirements, and that
he pleaded guilty to this charge in exchange for the State’s recommendation that
his punishment be assessed at two years’ confinement, and the standard waiver of
his right of appeal if the trial court accepted the plea-bargain agreement. The
reporter’s record for the plea hearing in this case, which was combined with the
record for the motion to adjudicate hearing in a related case, shows that appellant
voluntarily, intelligently, and knowingly pleaded guilty to the charge of failure to
comply with sex offender registration requirements in exchange for two years’
confinement, and the trial court accepted the plea bargain and assessed his
punishment at two years’ confinement.1
The judgment of conviction in the clerk’s record also reflects that the trial
court accepted the plea-bargain agreement because the court assessed appellant’s
punishment at two years’ confinement. See TEX. R. APP. P. 25.2(a)(2). Thus, the
record supports the trial court’s certification that this is a plea-bargain case and the
1
The trial court set appellant’s sentence in this case to run concurrently with the
twenty-year sentence he received in his related trial court cause No. 1213794,
which is pending under appellate cause No. 01-14-00275-CR.
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trial court did not give its permission to appeal on any matters, including any
rulings on pretrial motions. See Dears, 154 S.W.3d at 615.
To the extent appellant’s pro se notice of appeal contends that he is
permitted to challenge rulings on pretrial motions, a review of the clerk’s record
does not show that any written rulings on pretrial motions were adverse to
appellant. And, to the extent appellant contends that his plea was involuntary, the
Texas Court of Criminal Appeals has held that the voluntariness of a guilty plea
may not be contested on direct appeal following a plea–bargain agreement. See
Woods v. State, 108 S.W.3d 314, 316 & n.6 (Tex. Crim. App. 2003); Cooper v.
State, 45 S.W.3d 77, 81, 83 (Tex. Crim. App. 2001).
Because appellant has no right of appeal in this plea-bargain case, we must
dismiss this appeal without further action. See Menefee v. State, 287 S.W.3d 9, 12
n.12 (Tex. Crim. App. 2009); 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), must dismiss
a prohibited appeal without further action, regardless of the basis for the appeal.”);
see also Greenwell v. Court of Appeals for Thirteenth Judicial Dist., 159 S.W.3d
645, 649 (Tex. Crim. App. 2005) (explaining purpose of certification requirements
is to resolve cases that have no right of appeal quickly without expense of
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appointing appellate counsel, preparing reporter’s record or preparing appellate
brief).
CONCLUSION
Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R.
APP. P. 43.2(f). We dismiss all pending motions as moot.2
PER CURIAM
Panel consists of Justices Jennings, Keyes, and Bland.
Do not publish. TEX. R. APP. P. 47.2(b).
2
Attorney James Sidney Crowley must immediately send the required notice and
file a copy of that notice with the Clerk of this Court. See TEX. R. APP. P. 6.5(c).
Appointed counsel still has a duty to inform appellant of the result of this appeal
and that he may, on his own, pursue discretionary review in the Texas Court of
Criminal Appeals. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim.
App. 2005).
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