                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-14-00732-CR

                                      Michael Angel SANCHEZ,
                                              Appellant

                                                  v.

                                         The STATE of Texas,
                                               Appellee

                     From the 226th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2011CR7301
                              Honorable Sid L. Harle, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice
                  Jason Pulliam, Justice

Delivered and Filed: July 29, 2015

DISMISSED FOR WANT OF JURISDICTION

           Pursuant to a plea agreement, Appellant Michael Sanchez entered a plea of nolo contendere

to the charge of aggravated robbery. The trial court assessed punishment at fifteen years’

confinement in the Institutional Division of the Texas Department of Criminal Justice. Sanchez

filed a general notice of appeal. The trial court did not grant Sanchez permission to appeal.

           On appeal, Sanchez contends his plea was involuntary because he detrimentally relied on

the court’s admonishments concerning whether his state sentence would run concurrently with an

active federal sentence. Absent the proof of one of the exceptions provided in Texas Rules of
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Appellate Procedure 25.2, we are without jurisdiction to consider the merits of Sanchez’s

complaint, and we dismiss the appeal.

                           FACTUAL AND PROCEDURAL BACKGROUND

       Following admonishments by the trial court, Sanchez entered a plea of nolo contendere

pursuant to a plea bargain on July 21, 2014. The plea bargain provided that the trial court would

not assess punishment in excess of seventeen years’ confinement. Before accepting Sanchez’s

nolo contendere plea, the trial court affirmed Sanchez was mentally competent and the plea was

entered freely and voluntarily.

       Trial Court:    Are you entering that plea freely and voluntarily?
       Sanchez:        Yes, Your Honor.
       Trial Court:    Has anybody threatened you, used any force or violence on you or
                       promised you anything to get you to plead nolo contendere?
       Sanchez:        No, Your Honor.

       In addition to the oral questions pertaining to the voluntariness of the plea, the trial court

was also presented with a document entitled “Court’s Admonishments and Defendant’s Waivers

and Affidavit of Admonitions” wherein Sanchez acknowledged:

       4.      If I have a plea bargain agreement with the prosecutor, its terms are fully
               set forth in the attached document. I have received no promise from the
               prosecutor, my attorney or the Court which are not set forth in that
               document, and I realize that no one else would be empowered to make me
               any promises.

The agreement included the following items “mutually agreed and recommended by the parties:”

       •    Punishment to be assessed at cap 17 years [sic]
       •    Affirmative Finding of a Deadly Weapon or 3G Offense, Defendant is not
            eligible for supervision under CCP 42.12, Sec. 3
       •    State opposes community supervision/deferred adjudication
       •    Restitution to be determined by the Court through the Community Supervision
            office

The trial court proceeded to find that Sanchez entered his plea freely and voluntarily and that the

evidence was sufficient to support the plea.

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        At the time of the plea, Sanchez was in federal custody serving a seven year, three month

sentence for a federal offense. Sanchez expressed concern about whether his state sentence would

run concurrently or consecutively with his existing federal sentence. The trial court explained to

Sanchez that he would likely be returning to federal custody following his sentencing in state court.

The record does not contain any comments by Sanchez’s attorney regarding his client’s sentencing

inquiry. The court explained:

        My understanding is that—again, I don’t want you to rely on it because I don’t
        know if they changed the rules[,] but my understanding is that if you—you go—
        when you finish this sentencing, you’ll go back to the federal penitentiary and the
        State of Texas will recognize and give you credit on your sentence here . . . .

(emphasis added).

        The court repeatedly couched comments regarding the probability of Sanchez serving a

portion of his state sentence in the federal penitentiary in cautionary language. Statements by the

court included: “I don’t know—I don’t know if it still works this way.”; “But the State is probably

going to give you credit for your State’s time . . . .”; “I don’t want you to rely on that . . . .” When

asked if he understood the proceedings and the court’s limitations, Sanchez replied, “Okay.”

        On September 15, 2014, the trial court sentenced Sanchez to fifteen years’ confinement in

the Institutional Division of the Texas Department of Criminal Justice, an amount less than the

maximum seventeen-year term stipulated to in the plea bargain. At that time, Sanchez’s attorney

asked the trial court whether the sentence would run concurrently with Sanchez’s federal sentence.

The trial court stated it would. On October 15, 2014, Sanchez appeared before the court for a

hearing on a motion to reconsider his sentence. Sanchez requested that his judgment be amended

to reflect his good behavior in custody—where he had remained continuously since 2011. The

trial court denied the motion, holding the court had already sentenced Sanchez below the allotted

maximum provided in the plea bargain.


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       Sanchez now appeals his plea of nolo contendere, arguing he was “misled and harmed by

the trial court’s admonishment” regarding where his sentence would be served. Sanchez has

remained in Texas Department of Criminal Justice custody since his sentencing. As a result,

Sanchez argues his plea was made involuntarily.

                                             APPELLATE LAW

A.     Texas Rule of Appellate Procedure 25.2

       “The standard for determining [appellate] jurisdiction is not whether the appeal is

precluded by law, but whether the appeal is authorized by law.” Abbott v. State, 271 S.W.3d 694,

696–97 (Tex. Crim. App. 2008); see also TEX. CONST. art. V, § 6(a). Texas Rule of Appellate

Procedure 25.2 authorizes an appellant’s right to appeal in a plea bargain case. TEX. R. APP. P.

25.2(a)(2); see also 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.”).

       For an appellant whose sentence did not exceed the punishment stipulated to in the plea

bargain, Rule 25.2 enumerates two exceptions permitting an appeal on the basis of an

involuntariness claim. TEX. R. APP. P. 25.2(a)(2). The rule currently provides:

       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.

Id. Although the Texas Rules of Appellate Procedure do not establish jurisdiction of appellate

courts, the Rules set out procedures, which must be followed in order to invoke jurisdiction over

a particular appeal. Blanton v. State, 369 S.W.3d 894, 902 (Tex. Crim. App. 2012) (citing Olivo

v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996)). If the appellate court’s jurisdiction is not
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properly invoked, “the power of the appellate court to act is as absent as if it did not exist.” Ex

Parte Caldwell, 383 S.W.2d 587, 589 (Tex. Crim. App. 1964); see, e.g., Sanchez v. State, 53

S.W.3d 684, 685 (Tex. App.—San Antonio 2001, pet. ref’d) (the court was “without jurisdiction

to consider the merits of appellant’s complaint” regarding voluntariness where an appellant pled

guilty with a plea bargain, and the trial court assessed a punishment within the terms of the plea

bargain); see also Alvarez v. State, 50 S.W.3d 566, 566–67 (Tex. App.—San Antonio 2001, no

pet.) (holding the appellate court does not have jurisdiction to rule on an issue of voluntariness of

an original plea in an appeal from an order revoking probation).

B.     Analysis

       Here, Sanchez, both orally and in writing, voluntarily waived his rights and entered a plea

of nolo contendere. Sanchez was sentenced within the plea bargain terms, and he now appeals a

post-conviction matter without the permission of the trial court. Because Sanchez does not satisfy

either exceptions under Rule 252, see TEX. R. APP. P. 25.2(a)(2), this court must “dismiss the

prohibited appeal without further action, regardless of the basis for the appeal.” Chavez, 183

S.W.3d at 680; see also Sanchez, 53 S.W.3d at 685. We note, an appellate court is precluded from

making “inquiry into even possibly meritorious claims.” Chavez, 183 S.W.3d at 680.

       Nevertheless, Sanchez’s failure to comply with Rule 252.2’s requirements does not affect

his right to bring a claim through the proper channels. See generally White v. State, 61 S.W.3d

424, 427–29 (Tex. Crim. App. 2001). Claims of involuntary pleas may be raised in either a motion

for new trial or post-conviction writ of habeas corpus. See Cooper v. State, 45 S.W.3d 77, 82 (Tex.

Crim. App. 2001). “These procedures are not only adequate to resolve claims of involuntary pleas,

but they are superior to appeal in that the claim may be supported by information from sources

broader than the appellate record.” Id.; see also TEX. R. APP. P. 25.2(a)(2).



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                                           CONCLUSION

       Because Sanchez’s sentence did not exceed the punishment specified in the plea bargain,

his appellate rights are limited to the two exceptions permitting a general notice of appeal set forth

in Rule 25.2(a)(2). TEX. R. APP. P. 25.2(a)(2). Neither exception is applicable here.

       For these reasons, this court is without jurisdiction to consider the merits of Sanchez’s

complaint and the appeal is dismissed.


                                                   Patricia O. Alvarez, Justice

DO NOT PUBLISH




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