Opinion issued December 1, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00852-CR
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CALTON CARTER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Case No. 1442030
MEMORANDUM OPINION
Appellant, Calton Carter, proceeding pro se and incarcerated, pleaded guilty
to the third-degree felony offense of felon in possession of a firearm, with the
agreed recommendation that he receive six years’ confinement. See TEX. PENAL
CODE ANN. §§ 46.04(a)(2), (e) (West Supp. 2014). On September 8, 2015, the trial
court assessed appellant’s punishment at six 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 September
23, 2015, acknowledging that his punishment did not exceed the amount
recommended by the State and agreed to by appellant, but contending that his
guilty plea did not preclude his claiming ineffective assistance of counsel or
appealing any rulings on pretrial motions. See TEX. R. APP. P. 26.2(a)(1).
However, on November 5, 2015, appellant filed a pro se request to withdraw
appeal, claiming that he no longer wishes to prosecute this appeal. See id. 42.2(a).1
We dismiss this 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
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Although we construe appellant’s request to withdraw his appeal as a pro se
motion to dismiss his appeal, we cannot grant this motion because it lacks the
signature of his trial counsel, who remains his counsel because there was no order
granting his withdrawal in the clerk’s record. See TEX. CODE CRIM. PROC. ANN.
art. 26.04(j)(2) (West Supp. 2014); TEX. R. APP. P. 42.2(a). By seeking dismissal,
appellant is effectively seeking to waive his right to appeal, which generally would
require abatement to determine whether it was made voluntarily, knowingly, and
intelligently. See TEX. CODE CRIM. PROC. art. 1.14 (West Supp. 2014); Ex parte
Broadway, 301 S.W.3d 694, 697 (Tex. Crim. App. 2009); Ex parte Tabor, 565
S.W.2d 945, 946 (Tex. Crim. App. 1978). However, because we lack jurisdiction
to consider this plea-bargain appeal, abatement is unnecessary.
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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
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
waiver and admonishment papers indicating that appellant pleaded guilty to the
third-degree offense of felon in possession of a weapon, in exchange for the State’s
recommendation that his punishment be assessed at six years’ confinement, and the
State abandoned the two enhancement paragraphs in the indictment. The clerk’s
record also contains the standard waiver of his right of appeal if the trial court
accepted the plea-bargain agreement.
The judgment of conviction in the clerk’s record reflects that the trial court
accepted the plea-bargain agreement because it assessed appellant’s punishment at
six years’ confinement, and the State abandoned the two enhancement paragraphs.
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 that the trial court did not give its
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permission to appeal on any matters, including any rulings on pretrial motions. See
Dears, 154 S.W.3d at 615.
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
appointing appellate counsel, preparing reporter’s record or preparing appellate
brief).
CONCLUSION
Accordingly, we dismiss this appeal for want of jurisdiction. See TEX. R.
APP. P. 43.2(f). We dismiss all pending motions as moot.
PER CURIAM
Panel consists of Justices Higley, Huddle, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
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