DISMISS; Opinion Filed November 24, 2014.




                                           In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                    No. 05-14-00020-CR
                                    No. 05-14-00021-CR

                                JOVANY ALBA, Appellant

                                             V.

                            THE STATE OF TEXAS, Appellee

                     On Appeal from the 204th Judicial District Court
                                  Dallas County, Texas
                    Trial Court Cause Nos. F13-51275-Q, F13-51192-Q

                             MEMORANDUM OPINION
                         Before Justices Francis, Evans, and Stoddart
                                  Opinion by Justice Evans

       Jovany Alba waived a jury and pleaded guilty to aggravated assault with a deadly weapon

and unlawful possession of a firearm by a felon. See TEX. PENAL CODE ANN. §§ 22.02(a)(2),

46.04(a) (West 2011).    In the aggravated assault case, appellant also pleaded true to one

enhancement paragraph alleging a prior felony conviction. At the plea hearing, the prosecutor

and appellant agreed to cap the punishment in each case at ten years. The trial court found

appellant guilty and the enhancement paragraph true and assessed punishment at ten years’
imprisonment in each case. 1 On appeal, appellant’s attorney filed a brief in which she concludes

the appeals are wholly frivolous and without merit. See Anders v. California, 386 U.S. 738

(1967). We advised appellant of his right to file a pro se response, but he did not file a pro se

response. See Kelly v. State, 436 S.W.3d 313, 219–21 (Tex. Crim. App. 2014) (identifying

duties of appellate courts and counsel in Anders cases).

           Initially, counsel questioned the Court’s jurisdiction over the appeals because appellant

pleaded guilty and was sentenced in accordance with plea agreements.                                               Additionally, after

sentencing appellant, the trial court specifically admonished appellant that he had no right to

appeal. Nevertheless, the certifications state the cases do not involve plea agreements. Counsel

pointed out this discrepancy between the trial court’s certifications of appellant’s right to appeal

and the record. See Dears v. State, 154 S.W.3d 610 (Tex. Crim. App. 2005). We agree we lack

jurisdiction over the appeals.

           In plea bargain cases, we review the record to determine our jurisdiction and whether the

trial court’s certification is correct. See id. at 612–13. An agreement to a punishment cap is a

plea agreement within the meaning of rule 25.2 of the Texas Rules of Appellate Procedure. See

TEX. R. APP. P. 25.2(a)(2); Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003);

Threadgill v. State, 120 S.W.3d 871, 872 (Tex. App.—Houston [1st Dist.] 2003, no pet.). Here,

the trial court’s certifications state the cases are not plea-bargain cases, and the defendant has the

right of appeal. The record, however, shows plea agreements that capped the punishment in each

case at ten years’ imprisonment. The trial court assessed punishment in accordance with the cap

and specifically told appellant he did not have a right to appeal because “I followed the plea


1
  We note the trial court’s judgment on the aggravated assault case says “n/a” in the sections regarding the plea and finding on the enhancement
paragraph, which contradicts the record of the plea proceedings. Because of our disposition of the appeal, we cannot modify the judgment to
correct the error.



                                                                      -2-
bargain agreement and didn’t give you more than ten.” Thus, the certifications do not accurately

reflect the trial court proceedings. See Dears, 154 S.W.3d at 614–15.2

           Rather than raise the jurisdictional issue for the first time in an Anders brief, the better

practice would be for counsel to file a motion asking that the Court review the jurisdictional

issue before briefs are filed. Nevertheless, we agree with counsel that we lack jurisdiction over

the appeals.

           We dismiss the appeals for want of jurisdiction.

                                                                              / David Evans/
                                                                              DAVID EVANS
                                                                              JUSTICE

Do Not Publish
TEX. R. APP. P. 47
140020F.U05




2
   Had counsel filed a brief raising issues on the merits, we would abate the case to allow the trial court to file an amended certification that
showed either no right to appeal or provided the basis for the right to appeal. See Cortez v. State, 420 S.W.3d 803 (Tex. Crim. App. 2013);
Dears, 154 S.W.3d at 614–15. However, because appellant’s counsel raises the jurisdictional issue in these cases and filed a brief saying the
appeals are frivolous, and because the record clearly shows the trial court did not give appellant permission to appeal, we see no reason to take
that additional step here.



                                                                      -3-
                              Court of Appeals
                       Fifth District of Texas at Dallas

                                     JUDGMENT


JOVANY ALBA, Appellant                           Appeal from the 204th Judicial District
                                                 Court of Dallas County, Texas (Tr.Ct.No.
No. 05-14-00020-CR      V.                       F13-51275-Q).
                                                 Opinion delivered by Justice Evans,
THE STATE OF TEXAS, Appellee                     Justices Francis and Stoddart participating.



        Based on the Court’s opinion of this date, we DISMISS the appeal for want of
jurisdiction.



      Judgment entered this 24th day of November, 2014.




                                           -4-
                               Court of Appeals
                        Fifth District of Texas at Dallas

                                      JUDGMENT


JOVANY ALBA, Appellant                             Appeal from the 204th Judicial District
                                                   Court of Dallas County, Texas (Tr.Ct.No.
No. 05-14-00021-CR       V.                        F13-51192-Q).
                                                   Opinion delivered by Justice Evans,
THE STATE OF TEXAS, Appellee                       Justices Francis and Stoddart participating.



        Based on the Court’s opinion of this date, we DISMISS the appeal for want of
jurisdiction.



      Judgment entered this 24th day of, 2014.




                                             -5-
