ACCEPTED
01-15-00150-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
4/24/2015 9:53:53 AM
CHRISTOPHER PRINE
CLERK
Nos. 01-15-00149-CR, 01-15-00150-CR, 01-15-00151-CR
In the FILED IN
1st COURT OF APPEALS
Court of Appeals HOUSTON, TEXAS
For the 4/24/2015 9:53:53 AM
First District of Texas CHRISTOPHER A. PRINE
At Houston Clerk
Nos. 1974171, 1974172, 2001637
In the County Criminal Court at Law No. 4
Of Harris County, Texas
JAMES E. GUZMAN, pro se
Appellant
V.
THE STATE OF TEXAS
Appellee
STATE’S MOTION TO DISMISS FOR WANT OF JURISDICTION
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
THE STATE OF TEXAS, represented by the undersigned Assistant District
Attorney, moves this Court to dismiss this appeal for want of jurisdiction because
appellant was convicted pursuant to pleas of guilty and was sentenced in
accordance with a plea bargain agreed upon between himself and the State for each
case. Additionally, the trial court certified appellant did not have the right to
appeal, denied appellant permission to appeal, and no written pre-trial motions
were filed and ruled upon by the trial court before appellant’s guilty pleas. In
support thereof, the State respectfully submits the following.
STATEMENT OF THE CASE
Appellant was charged by information in three cases with misdemeanor
assault. (C.R. I at 7; C.R. II at 7; C.R. III at 6)1 In two cases, the information was
enhanced with a prior conviction for felony assault-family member. (C.R. I at 7;
C.R. II at 7) In his third assault case, the information was enhanced with a prior
conviction for misdemeanor assault. (C.R. III at 6)
Appellant pled guilty to all three cases on January 5, 2015, pursuant to a plea
bargain agreement reached between himself and the State. (C.R. I at 10-11; C.R. II
at 10-11; C.R. III at 10-11) Appellant was sentenced to 120 days in the Harris
County Jail with credit for eight days served. (C.R. I at 16; C.R. II at 16; C.R. III
at 15) The sentences were to run concurrently and matched the plea bargain
agreement reached between appellant and the State. (C.R. I at 16-17; C.R. II at 16-
17; C.R. III at 15-16; see C.R. I at 10; C.R. II at 10; C.R. III at 10) Upon his pleas
of guilty, the trial court certified that each case was a “plea-bargain case, and
[appellant] has NO right of appeal,” signed by appellant in each case. (C.R. I at
19; C.R. II at 19; C.R. III at 18)
1
C.R. I refers to the Clerk’s Record for cause number 1971471 (No. 01-15-00149-CR);
C.R. II refers to the Clerk’s Record for cause number 1974172 (No. 01-15-00150-CR);
C.R. III refers to the Clerk’s Record for cause number 2001637 (No. 01-15-00151-CR).
2
As part of his pleas of guilty, appellant signed a waiver of appeal along with
documentation stating he was satisfied with the evidence disclosed to his counsel
and withdrawing any requests for further discovery. (C.R. I at 10-14; C.R. II at 10-
14; C.R. III at 10-14) The record contains no written motions filed and ruled upon
by the trial court prior to appellant’s pleas.
Appellant timely filed a pro se notice of appeal, however the trial court
certified appellant had no right to appeal in any of his cases. (C.R. I at 19, 22; C.R.
II at 19, 22; C.R. III at 18, 21; see C.R. I at 17, 23; C.R. II at 17, 23; C.R. III at 16,
22) At a hearing held on February 5, 2015, appellant affirmed he signed waivers
of appeal and understood the trial judge’s admonishment that the pleas were final
“and there was no appeal.” (R.R. I at 5, 9; R.R. II at 5, 9; R.R. III at 5, 9)2 The
trial court denied appellant permission to appeal. (R.R. I at 8; R.R. II at 8; R.R. III
at 8) On February 15, 2015, appellant filed a Pro Se Motion to Reverse and
Remand “to dismissal due to insufficient evidence” that was denied by the trial
court. (C.R. I at 24; C.R. II at 24; C.R. III at 23)
APPELLANT FAILED TO INVOKE THIS COURT’S
JURISDICTION OVER HIS APPEALS
In his brief, appellant argues that he is innocent of the offenses charged.
(Appellant’s Brief at 1) Appellant states in his brief that the complainants in the
2
R.R. I refers to the Reporter’s Record for cause number 1971471 (No. 01-15-00149-CR);
R.R. II refers to the Reporter’s Record for cause number 1971472 (No. 01-15-00150-CR);
R.R. III refers to the Reporter’s Record for cause number 2001637 (No . 01-15-00151-CR).
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assault cases “are also incarcerated for family violence,” and that trial counsel was
ineffective for failing to disclose the complainants “had intensive family violence
cases pending and warrants.” (Appellant’s Brief at 1) Appellant argues that he
“was never the assaulter” and that the “outcome of trial would’ve been different
had the arrest records of [the complainants] been made aware to the Court by the
ineffective assistance of trial counsel.” (Appellant’s Brief at 2)
Because appellant’s sentences did not exceed the agreed-upon punishment
range of his plea bargain, the trial court certified appellant had no right to appeal,
no matters were raised by written motion and ruled upon before his pleas, and the
trial court did not grant appellant permission to appeal his convictions, appellant
has not fulfilled the requirements to invoke this Court’s jurisdiction over his
appeal. Therefore, appellant’s appeal must be dismissed for want of jurisdiction.
Texas Rule of Appellate Procedure 25.2(a)(2) provides:
[i]n a plea bargain case. . . in which a defendant’s plea
was guilty . . . and the punishment did not exceed the
punishment recommended by the prosecutor and agreed
to by the defendant—a defendant may appeal only: (A)
those matters that were raised by written motion filed and
ruled on before trial, or (B) after getting the trial court’s
permission to appeal.
This requirement to invoke appellate jurisdiction complies with Texas Code
of Criminal Procedure art. 44.02, which states a defendant
who has been convicted upon either his plea of guilty or
plea of nolo contendere before the court and the court,
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upon the election of the defendant, assesses punishment
and the punishment does not exceed the punishment
recommended by the prosecutor and agreed to by the
defendant and his attorney may prosecute his appeal, he
must have permission of the trial court, except on those
matters which have been raised by written motion filed
prior to trial.
The Court of Criminal Appeals has also stated that appellate courts, “while
having jurisdiction to ascertain whether an appellant who plea-bargained is
permitted to appeal . . . must dismiss a prohibited appeal without further action,
regardless of the basis for the appeal.” Chavez v. State, 183 S.W.3d 675, 680 (Tex.
Crim. App. 2006). The Chavez Court held, in those cases where an appellant was
sentenced “pursuant to the agreed terms of a plea bargain,” did not file any pre-trial
written motion ruled upon before trial, and did not receive permission from the
trial court to appeal, an appellate court must dismiss the appeal and “no inquiry
into even possibly meritorious claims may be made.” Id; see Ekwere v. State, No.
01-15-00131-CR, 2015 WL 1735492 at *1 (Tex. App.—Houston [1st Dist.] April
14, 2015, no pet. h.) (mem. op., not designated for publication) (dismissing
defendant’s pro se appeal where defendant pled guilty to felony theft, was
sentenced in accordance with a plea bargain agreement with the State, and the trial
court’s certification that appellant did not have the right to appeal was supported
by the record).
5
The Court of Criminal Appeals has also held TEX. R. APP. P. 25.2 does “not
impermissibly abridge the right to appeal,” as the right to appeal is “guaranteed
only by statute and [ ] the legislature did not expressly or even impliedly make an
exception for appeals of jurisdictional issues that fall outside of the statutory
exceptions. . . .” Griffin v. State, 145 S.W.3d 645, 649 (Tex. Crim. App. 2004).
While appellate courts must determine whether certifications of an
appellant’s right to appeal are defective, where a trial court’s certification that an
appellant has no right to appeal is supported by the record, and a plea-bargaining
appellant cannot satisfy any statutory exception to invoke an appellate court’s
jurisdiction to hear an appeal, the appellate court must dismiss the appeal for want
of jurisdiction. See Terrell v. State, 245 S.W.3d 602, 604 (Tex. App.—Houston
[1st Dist.] 2007, no pet.) (finding defendant’s appeal “must” be dismissed where
defendant pled guilty and received punishment within the terms of defendant’s plea
agreement with the State, the trial court certified defendant had no right to appeal,
no pre-trial written motions were ruled upon, the trial court did not give permission
to appeal, and the certifications of defendant’s right to appeal were supported by
the record).
Here, appellant was convicted and sentenced pursuant to a plea bargain
agreement reached between himself and the State. (C.R. I at 10-11, 16-17; C.R. II
at 10-11, 16-17; C.R. III at 10-11, 15-16; see C.R. I at 27; C.R. II at 27; C.R. III at
6
26) No pre-trial motions were filed by appellant or his attorney and ruled upon
before his pleas. Appellant received notice of the effect his agreed-upon pleas
would have regarding subsequent attempts to appeal, both in writing and by trial
court admonishment. (See C.R. I at 10; C.R. II at 10; C.R. III at 10; R.R. I at 5, 9;
R.R. II at 5, 9; R.R. III at 5, 9) Appellant waived his right to appeal and the trial
court certified that appellant did not have the right to appeal, as his convictions
were the result of a plea bargain agreement. (C.R. I at 10, 19; C.R. II at 10, 19;
C.R. III at 10, 18)
Additionally, the trial court’s certifications are supported by the record.
Appellant agreed that he pled guilty to the offenses and received the same sentence
as that listed in the plea agreement documentation. (R.R I at 4-5; R.R. II at 4-5;
R.R. III at 4-5) Appellant recalled the trial court’s admonishment, upon his guilty
pleas, regarding his waiver of the right to appeal. (R.R. I at 5, 9; R.R. II at 5, 9;
R.R. III at 5, 9) Appellant’s signature is also on the plea bargain documentation,
including the waiver of appeal and the trial court’s certification that appellant had
no right to appeal, in each case. (C.R. I at 10, 19; C.R. II at 10, 19; C.R. III at 10,
18) Finally, the trial court denied appellant permission to appeal his convictions.
(R.R. I at 8; R.R. II at 8; R.R. III at 8)
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Therefore, because appellant failed to satisfy the requirements to invoke this
Court’s jurisdiction over these cases, appellant’s appeal in the abovementioned
cause numbers should be dismissed for want of jurisdiction.
PRAYER FOR RELIEF
WHEREFORE, the State respectfully requests this Court dismiss the appeals
for want of jurisdiction.
Respectfully submitted,
/s/ Patricia McLean
PATRICIA MCLEAN
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
TBC No. 24081687
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing instrument will be mailed to
appellant at the following addresses:
James E. Guzman, pro se
TDC# 01023457; SPN 01125709
Texas Department of Criminal Justice
Joe F. Gurney Transfer Facility
1385 FM 3328
Palestine, TX 75803
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James E. Guzman, pro se
TDC# 01023457; SPN 01125709
Texas Department of Criminal Justice
P.O. Box 99
Huntsville, TX 77342-0099
PATRICIA MCLEAN
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
TBC No. 24081687
Date: April 24, 2015
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