Opinion issued August 26, 2014




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-13-01086-CR
                           ———————————
                CARLOS IGNACIO HERNANDEZ, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 182nd District Court
                           Harris County, Texas
                       Trial Court Case No. 1339390


                         MEMORANDUM OPINION

      Appellant Carlos Ignacio Hernandez pleaded guilty, pursuant to an

agreement with the State that punishment be capped at confinement for 40 years, to

the first degree felony offense of aggravated sexual assault of a child under

fourteen years of age. See TEX. PENAL CODE. ANN. § 22.021(a)(1)(B)(i), (a)(2)(B)
(West Supp. 2013). The trial court found appellant guilty and, in accordance with

appellant’s plea agreement with the State, assessed punishment at confinement for

40 years. The trial court certified that this is a plea-bargain case and that appellant

does not have the right of appeal. Nevertheless, appellant filed a notice of appeal.

We dismiss the appeal for lack of jurisdiction.

         A plea bargain case is one 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.” TEX. R. APP. P. 25.2(a)(2). In a

plea bargain case, 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. See id. The appeal must be dismissed if a certification

showing that the defendant has the right of appeal has not been made part of the

record. See TEX. R. APP. P. 25.2(d).

         The clerk’s record reflects that appellant pleaded guilty in exchange for the

State’s recommendation that punishment be capped at confinement for 40 years.1

An agreement to a recommended cap on punishment constitutes a plea

bargain. See Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App.

2003); Wilson v. State, 264 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.]


1
    Although not stated in the plea agreement, the record further reflects that the State
    agreed to dismiss the related charge of indecency with a child in Trial Court Cause No.
    1256075 upon appellant’s sentencing.

                                              2
2007, no pet.); Waters v. State, 124 S.W.3d 825, 826 (Tex. App.—Houston [14th

Dist.] 2003, pet. ref'd). The clerk’s record reflects that the trial court properly

admonished appellant and that appellant understood that he would not have the

right of appeal. The trial court assessed punishment at confinement for 40 years, in

accordance with appellant’s agreement with the State.2 We conclude that the record

supports the trial court’s certification. See TEX. R. APP. P. 25.2; Dears v. State, 154

S.W.3d 610, 615 (Tex. Crim. App. 2005).

         In a plea bargained case in which the punishment assessed does not exceed

the plea agreement, “a defendant may appeal only (A) those matters that were

raised by written motion filed and ruled on before trial, or (B) after obtaining the

trial court’s permission to appeal.” TEX. R. APP. P. 25.2(a)(2). The trial court did

not rule adversely to appellant on any pre-trial matters and did not give permission

for appellant to appeal. See id.3 Because appellant has no right of appeal, we must

2
    The trial court’s judgment states, “Term of Plea Bargain: Without an Agreed
    Recommendation – PSI Hearing.” Such language does not convert the plea to an open
    plea when, as here, the plea was entered pursuant to an agreed sentencing
    cap. See Threadgill v. State, 120 S.W.3d 871, 872 (Tex. App.—Houston [1st Dist.]
    2003, no pet.) (holding statement in record indicating that there was no agreed
    recommendation did not convert proceeding into open plea when plea was entered
    pursuant to agreed sentencing cap).
3
    Although the trial court denied appellant’s oral request to withdrawal his plea during the
    sentencing hearing, appellant’s request was not a matter raised by written motion and
    ruled on before trial. See TEX. R. APP. P. 25.2(a)(2); Phillips v. State, No. 01-09-00047-
    CR, 2010 WL 2991081, at *1 (Tex. App.—Houston [1 Dist.] July 29, 2010, pet. ref’d);
    Vasquez v. State, No. 05-09-01369-CR, 2010 WL 2574218, at *1 (Tex. App.—Dallas
    June 29, 2010, pet. ref’d); Chavez v. State, 139 S.W.3d 43, 59 (Tex. App.—Corpus
    Christi 2004, pet. granted), aff’d, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006).
                                               3
dismiss the appeal. See TEX. R. APP. P. 25.2(d); Chavez v. State, 183 S.W.3d 675,

680 (Tex. Crim. App. 2006) (“A court of appeals, while having jurisdiction to

ascertain whether an appellant who plea-bargained is permitted to appeal by Rule

25.2(a)(2), must dismiss a prohibited appeal without further action, regardless of

the basis for the appeal.”).

      Accordingly, we dismiss the appeal for lack of jurisdiction. See TEX. R. APP.

P. 43.2(f). We dismiss the motion to withdraw filed by appellant’s appointed

attorney as moot.

                                 PER CURIAM
Panel consists of Justices Massengale, Brown, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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