                                  NO. 07-11-0149-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL C

                                   MARCH 14, 2012

                         ______________________________


                        GLENN ERVIN ANDERS, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE


                       _________________________________

              FROM THE 20TH DISTRICT COURT OF MILAM COUNTY;

             NO. CR22898; HONORABLE EDWARD P. MAGRE, JUDGE

                        _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                CONCURING OPINION


      The majority opinion states that Appellant, Glenn Ervin Anders, pleaded guilty to

two counts of indecency with a child by contact "without a plea bargain agreement

except as to the upper limits of the sentence." (Emphasis added.) This statement is

supported by the Trial Court's Certification of Defendant's Right of Appeal which

specifically states that this case "is not a plea bargain case, and the defendant has the

right of appeal."   I concur in the result reached by the majority; however, I write
separately to express my opinion that the trial court incorrectly completed the

certification of the defendant's right of appeal, thereby necessitating an otherwise

unnecessary appeal.


       A trial court shall enter a certification of the defendant's right of appeal each time

it enters a judgment or other appealable order. See Tex. R. App. P. 25.2(a)(2). In a

plea bargain case - that is, a case in which a defendant enters a plea of guilty or nolo

contendere in exchange for a recommendation as to punishment from the State - when

the punishment does not exceed the punishment recommended by the State and

agreed to by the defendant, a defendant may only appeal (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. Id. If the trial court's certification of the defendant's right to

appeal does not show that the defendant has the right to appeal, the appeal must be

dismissed. See Tex. R. App. P. 25.2(d).


       The recommendation of a cap as to punishment is a recommendation, and a plea

entered in exchange for that recommendation is a plea entered pursuant to a plea

bargain. In this case, the Clerk's Record contains two separate documents entitled Plea

Agreement, wherein "[t]he defendant hereby agrees to plead guilty to the offense of

Indecency w/ Child, and in exchange, the State of Texas agrees to recommend a cap of

Ten (10) years confinement in the Texas Department of Criminal Justice."                  Both

documents were signed by the "Attorney for the State" and the "Defendant's Attorney."

The trial court ultimately assessed sentence on both counts of indecency at ten years

confinement, with the two sentences to run concurrently.



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       Where, as here, the punishment assessed by the trial court did not exceed the

recommendation made by the State, the Defendant's right of appeal was limited to

those matters that were raised by written motion filed and ruled on before trial, or with

the trial court's permission to appeal. Neither of those situations is applicable here.


       Therefore, if the trial court would have correctly completed the trial court

certification, this appeal would have been dismissed. Because the majority's decision to

affirm reaches the same result, I concur.




                                                 Patrick A. Pirtle
                                                     Justice


Do not publish.




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