DISMISS and Opinion Filed October 16, 2018




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-18-00667-CR

                      ANTONYO LAMARONEAL WRIGHT, Appellant
                                       V.
                           THE STATE OF TEXAS, Appellee

                      On Appeal from the County Criminal Court No. 1
                                   Dallas County, Texas
                          Trial Court Cause No. MA17-11858-A

                              MEMORANDUM OPINION
                        Before Justices Bridges, Francis, and Lang-Miers
                                   Opinion by Justice Francis
       Antonyo Lamaroneal Wright appeals his conviction for assault. On March 12, 2018,

appellant entered into a plea agreement with the State which included waiving his right to appeal.

That same day, appellant pleaded nolo contendere. The trial court found appellant guilty, assessing

punishment at 365 days confinement and a $200 fine, each probated for 18 months, and prepared

and signed a certification of appellant’s right to appeal, stating this was a “plea-bargain case” and

appellant had no right to appeal.

       Appellant then filed a motion for new trial. He alleged, among other things, ineffective

assistance of counsel. The trial court held a hearing after which it denied appellant’s motion.

Appellant subsequently filed a timely notice of appeal. The clerk’s record, filed June 8, 2018,

contains the trial court’s March 12th certification of appellant’s right to appeal which states
appellant has no right to appeal. In light of this, we requested jurisdictional letter briefs from the

parties.

           In his letter brief to this Court, appellant argues that this Court has jurisdiction because, on

June 25, 2018, the trial court prepared and signed a second certification of appellant’s right to

appeal which states appellant has the “right of appeal from the [trial court’s] denial of Defendant’s

Motion for New Trial.” Although this document is not in a supplemental clerk’s record, appellant

attached a copy to his letter brief.

           In response, the State filed its jurisdictional brief stating the appeal should be dismissed

because (1) an order denying a motion for new trial is not an appealable order independent of the

judgment of conviction, and (2) appellant waived his right to appeal under the plea agreement with

the State, notwithstanding the trial court’s second certification of appellant’s right to appeal. After

reviewing the letter briefs and the record, we conclude we lack jurisdiction over this appeal.

           A defendant in a criminal case has the right of appeal as set out in the code of criminal

procedure and the rules of appellate procedure. See TEX. CODE CRIM. PROC. ANN. art. 44.02 (West

2018); TEX. R. APP. P. 25.2(a). In criminal cases, unless expressly authorized by statute, appellate

courts only have jurisdiction to review a judgment of guilt or other appealable order. TEX. R. APP.

P. 25.2(a)(2); see TEX. CODE CRIM. PROC. art. 44.02 (“A defendant in any criminal action has the

right of appeal under the rules hereinafter prescribed....”); Abbott v. State, 271 S.W.3d 694, 696–

07 (Tex. Crim. App.2008) (standard for determining jurisdiction is not whether appeal is precluded

by law but whether appeal is authorized by law). Rule 25.2 provides that 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 “those matters that were raised by written motion filed and ruled on

before trial,” or “after getting the trial court’s permission to appeal.” TEX. R. APP. P. 25.2(a)(2).

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The denial of a motion for new trial, regardless of the ground or grounds raised in the motion, may

not be appealed in a plea bargained case without the trial court’s permission. TEX. R. APP. P.

25.2(a)(2); see Estrada v. State, 149 S.W.3d 280, 285 (Tex. App.—Houston [1st Dist.] 2004, pet.

ref’d).

          A trial court’s certification stating the trial court gave permission to appeal must be true

and supported by the record. See Dears v. State, 154 S.W.3d 610, 613–15 (Tex. Crim. App. 2005);

Waters v. State, 124 S.W.3d 825, 826 (Tex. App.–Houston [14th Dist.] 2003, pet. ref'd). An

appellate court is obligated to compare the trial court’s certification with the appellate record “to

ascertain whether a certification is defective and act accordingly.” Marsh v. State, 444 S.W.3d

654, 659 (Tex. Crim. App. 2014). A plea bargain is a preconviction agreement between the State

and a defendant in which the defendant agrees to plead guilty or nolo contendere in exchange for

a concession by the State (e.g., a reduction in the charge, a promise of sentencing leniency, or a

promise of a recommendation from the prosecutor to the trial judge as to punishment). Ex parte

Cox, 482 S.W.3d 112, 116 (Tex. Crim. App. 2016). Under Texas appellate rules, a defendant who

enters into a plea bargain also waives his right to appeal. Id. at 117. Once a defendant and the

State enter into a plea bargain, “only the [S]tate and the defendant may alter the terms of the

agreement.” Moore v. State, 295 S.W.3d 329, 331–32 (Tex. Crim. App. 2009). The trial court’s

only role in the plea bargain process is to advise the defendant whether it will accept or reject the

plea bargain. Id. at 332.

          Here, the record shows appellant, who was represented by counsel, entered into a plea

agreement with the State. Under its terms, appellant agreed to plead nolo contendere and

“expressly, voluntarily, knowingly, and intelligently” gave up and waived his right to appeal in

exchange for the State’s recommendation he receive probation for eighteen months. The plea

agreement was signed by appellant, his trial counsel, the district attorney, and the trial court. By

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entering the plea agreement, both parties agreed to abide by its terms, and the trial court’s only

role was to advise appellant whether it would accept or reject the plea. See Moore, 295 S.W.3d at

332. On March 12, 2018, the trial court followed the plea bargain agreement, found appellant

guilty, and assessed punishment that conformed to the agreement. Furthermore, although the trial

court held a hearing on the motion for new trial, our review of that record shows the State did not

agree to alter the terms of the plea bargain agreement by allowing appellant to appeal the ruling

on the motion for new trial. Because the record supports the March 12, 2018 certification of

appellant’s right to appeal, we conclude the trial court erred by preparing its June 25, 2018

certification to the contrary.

        Appellant waived his right to appeal. Therefore, his June 5th notice of appeal is ineffective

to initiate the appellate process, and we lack jurisdiction over this appeal. See Lundgren v. State,

434 S.W.3d 594, 599, 600 (Tex. Crim. App. 2014) (when appellant waives right to appeal as part

of plea bargain agreement with State, subsequent notice of appeal filed by him fails to “initiate the

appellate process” and deprives appellate court of jurisdiction over appeal).

        We dismiss this appeal for want of jurisdiction.




                                                   /Molly Francis/
                                                   MOLLY FRANCIS
Do Not Publish                                     JUSTICE
TEX. R. APP. P. 47.2(b)
180667F.U05




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                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 ANTONYO LAMARONEAL WRIGHT,                        On Appeal from the County Criminal Court
 Appellant                                         No. 1, Dallas County, Texas
                                                   Trial Court Cause No. MA17-11858-A.
 No. 05-18-00667-CR         V.                     Opinion delivered by Justice Francis,
                                                   Justices Bridges and Lang-Miers
 THE STATE OF TEXAS, Appellee                      participating.

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


Judgment entered October 16, 2018.




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