                    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).

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       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.




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      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




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