Dismissed and Memorandum Opinion filed November 25, 2014.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-13-00803-CR

                   VINCENT COLBY DUFFEY, Appellant

                                       V.
                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 268th District Court
                           Fort Bend County, Texas
                    Trial Court Cause No. 12-DCR-059653

                 MEMORANDUM                     OPINION


      Appellant was indicted for manslaughter. See Tex. Penal Code § 19.04.
Pursuant to an agreement with the State, appellant pleaded guilty to the lesser-
included offense of criminally negligent homicide. See Tex. Penal Code § 19.05.
The trial court sentenced appellant to confinement for two years in the State Jail
Division of the Texas Department of Criminal Justice and certified that the
defendant has the right of appeal. In two issues appellant argues that (1) his
punishment is so excessive and disproportionate to the crime that it constitutes
cruel and unusual punishment under the Eighth Amendment to the United States
Constitution and Article 1, Section 13 of the Texas Constitution; and (2) the
evidence adduced at the punishment hearing did not warrant punishing appellant
with the maximum amount of confinement allowed under the statute in light of the
mitigating evidence and the absence of aggravating factors. We dismiss the appeal.
                                    Background

      According to the presentence investigation report (PSI), appellant was
driving 84 to 97 miles per hour when he ran a red light and hit a van in which the
victim and three children were riding. When police arrived at the scene they found
the female driver of the van lying on her stomach in the grass with the van on top
of her. The woman’s baby had a laceration on the side of her head and was
conscious. The woman’s oldest son was found lying on his back conscious. The
woman’s daughter was found sitting next to the oldest son, conscious but bleeding
from her mouth. Appellant was found lying on the ground conscious and breathing.
The female driver was transported to Ben Taub Hospital where she later died. The
children were treated at the hospital, and all three survived. Appellant had a broken
leg and injured back and was also transported to Ben Taub. At the scene of the
collision appellant told police he ran the red light and was speeding because he was
in a hurry to see a friend.

      Appellant reported to the PSI investigator that on the day of the offense he
had been “up for about 3 days and had been taking his medications.” He was
driving down the road and reported having a blackout. Appellant reported that
when he woke up he had already hit the van and did not remember anything. When
the investigator confronted appellant with his earlier statement to the police officer
that he was driving fast to meet a friend, appellant reported that he was not sure

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what really happened, “only what other people told him he had done.”

      At the punishment hearing, Dr. David Axelrad, a psychiatrist, testified that
he examined appellant while appellant was in Ben Taub recovering from physical
injuries. While in the hospital appellant was diagnosed with schizoaffective
disorder bipolar type by the attending psychiatrist at Ben Taub. Dr. Axelrad opined
that appellant was most likely suffering symptoms from this disorder that led to his
behavior on the day of the offense. Dr. Axelrad testified, however, that appellant
was not so psychiatrically impaired at the time that he would meet the standards
for insanity in Texas in terms of knowledge of wrongfulness. He further testified
that appellant’s prognosis is good if he takes the medications prescribed for him.

      Appellant’s father testified that as a young child appellant was diagnosed
with Attention Deficit Hyperactivity Disorder and prescribed Ritalin and possibly
Adderall. At the age of 24 appellant attempted suicide. After the attempted suicide
appellant was diagnosed with schizoaffective bipolar disorder and prescribed
medication, which he took regularly.

      At the conclusion of the hearing, the trial court sentenced appellant to
confinement for two years in a State Jail Facility.

                                    Jurisdiction
      Although the trial court entered a certification of the defendant’s right to
appeal in which the court certified that this is not a plea bargain case and the
defendant has the right of appeal, the certification was in error based on the record.
See Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005) (court of appeals
is obligated to compare the certification with the record to ascertain whether a
certification is defective and act accordingly); Shankle v. State, 119 S.W.3d 808,
812–13 (Tex. Crim. App. 2003) (plea of guilty pursuant to agreement to reduce the
charge to a lesser-included is a plea-bargain agreement subject to Tex. R. App. P.

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25.2(a)(2)). We have no jurisdiction over the appeal. See Tex. R. App. P.
25.2(a)(2). Because this is a charge-bargain case, appellant has the right to appeal
under Texas Rule of Appellate Procedure 25.2(a)(2), only: (a) those matters that
were raised by written motion filed and ruled on before trial, or (b) after receiving
the trial court’s permission to appeal. Kennedy v. State, 297 S.W.3d 338, 340–41
(Tex. Crim. App. 2009). A charge bargain “effectively puts a cap on punishment,”
and is a bargain governed by Texas Rule of Appellate Procedure 25.2(a)(2).
Shankle v. State, 119 S.W.3d 808, 812–13 (Tex. Crim. App. 2003). The record
does not reflect the trial court’s permission to appeal or any pretrial motions that
could be appealed.
      On October 27, 2014, this court sent notice to the trial court giving the court
an opportunity to correct the certification of appellant’s right to appeal. No
corrected certification has been filed. Despite the incorrect certification, we have
no jurisdiction of appellant’s appeal. See Waters v. State, 124 S.W.3d 825, 826–27
(Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (holding reviewing court lacked
jurisdiction where defendant pled guilty with a sentencing cap of ten years, even
though trial judge certified defendant had right of appeal).
      Accordingly, we dismiss the appeal.




                                       /s/       Martha Hill Jamison
                                                 Justice



Panel consists of Justices Boyce, Jamison, and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).



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