In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-16-00225-CR
CHARLES JOSEPH BANDY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 354th District Court
Hunt County, Texas
Trial Court No. 30,872
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Justice Burgess
MEMORANDUM OPINION
Charles Joseph Bandy was indicted on two counts of sexual assault of a child, both second-
degree-felony offenses. See TEX. PENAL CODE ANN. § 22.011(f) (West Supp. 2017). He pled
guilty to, and was convicted of, one count of the lesser-included offense of indecency with a child.
The trial court sentenced Bandy to seven years’ imprisonment.
In his sole point of error on appeal, Bandy argues that the trial court erred in accepting his
plea because it was not freely and voluntarily made. Because we are without jurisdiction to address
this issue, we must dismiss Bandy’s appeal.
The record reflects that (1) Bandy was indicted on two counts of sexual assault of a child,
both second-degree-felony offenses; (2) Bandy and the State executed a document titled “Agreed
Punishment Recommendation” in which the State agreed to prosecute Bandy for only one count
of the lesser-included offense of indecency with a child, also a second-degree felony;1 (3) the State
dismissed the second count alleging sexual assault of a child; and (4) Bandy simultaneously
executed a waiver of the right to appeal the issue of guilt/innocence. 2 Thus, the State and Bandy
entered into a charge bargain, which “involves questions of whether a defendant will plead guilty
to the offense that has been alleged or to a lesser or related offense, and of whether the prosecutor
will dismiss, or refrain from bringing, other charges.” Shankle v. State, 119 S.W.3d 808, 813 (Tex.
Crim. App. 2003).
1
See TEX. PENAL CODE ANN. § 21.11(d) (West Supp. 2017).
2
The Texas Court of Criminal Appeals held that a presentence waiver of the right to appeal is proper when the State
has given adequate consideration for the waiver. Ex parte Broadway, 301 S.W.3d 694, 697–98 (Tex. Crim. App.
2009).
2
Under the Court of Criminal Appeals’ reasoning in Shankle and its progeny, “charge-
bargaining affects punishment . . . [and] effectively puts a cap on punishment at the maximum
sentence for the charge that is not dismissed.” Id. Accordingly, the charge bargain constitutes a
plea agreement for purposes of Rule 25.2(a)(2). See id.; Kennedy v. State, 297 S.W.3d 338, 339
(Tex. Crim. App. 2009). The Texas Legislature has granted a very limited right of appeal in plea
bargain cases. Rule 25.2(a)(2) of the Texas Rules of Appellate Procedure details that right as
follows:
(2) . . . . In a plea bargain case—that is, a case in which a defendant’s
plea was guilty or nolo contendere 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.
TEX. R. APP. P. 25.2(a)(2).
The trial court’s certification of right of appeal filed in this matter shows that this was a
plea bargain case in which Bandy had the right to appeal matters affecting punishment only. The
notice of appeal also states that Bandy wishes to appeal from his sentence. However, the sole point
of error on appeal is related only to guilt/innocence. Because the trial court’s certification does
not grant Bandy the right to appeal matters unrelated to punishment, we are without jurisdiction
over the sole point of error raised by Bandy on appeal.
3
Accordingly, we dismiss this appeal for want of jurisdiction.
Ralph K. Burgess
Justice
Date Submitted: October 16, 2017
Date Decided: December 6, 2017
Do Not Publish
4