                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-16-00321-CR


JEFFREY ENGLE                                                       APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


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          FROM THE 431ST DISTRICT COURT OF DENTON COUNTY
                    TRIAL COURT NO. F15-2721-431

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                        MEMORANDUM OPINION1

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      On May 16, 2016, as part of a plea-bargain agreement, Appellant Jeffrey

Engle pleaded guilty to the third-degree felony offense of assault on a family

member, enhanced to a second-degree felony offense. Tex. Penal Code Ann.

§§ 12.42(a), 22.01(a)–(b) (West Supp. 2016). In accordance with the agreement,

the trial court sentenced Appellant to eight years’ confinement with no fine. The


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       See Tex. R. App. P. 47.4.
trial court certified that Appellant had no right to appeal. See Tex. R. App. P.

25.2(a)(2).

      On August 17, Appellant filed a pro se notice of appeal in the trial court.

See Tex. R. App. P. 26.2(a). On August 23, we notified Appellant’s trial counsel

and Appellant that Appellant had filed a pro se notice of appeal, that the notice

appeared to have been filed untimely, that the trial court had certified that

Appellant had no right to appeal, and that we would dismiss the appeal unless

Appellant or any party desiring to continue the appeal filed a response showing

grounds for continuing the appeal no later than September 2. See Tex. R. App.

P. 25.2(d), 26.2(a), 44.3.

      Appellant responded and pointed out that he had filed a pro se letter with

the trial court on June 13 that requested a “new hearing,” rendering his August

17 notice of appeal timely filed. See Tex. R. App. P. 26.2(a)(2). Appellant also

attached an April 10, 2015 court-setting document for cause number F-2014-

1078-F, which noted that the State was recommending a six-year sentence in

exchange for Appellant’s guilty plea to “AFV Impede Breath” and that the

recommendation would remain “open” until May 15, 2015. Appellant argued that

this document shows the punishment ultimately imposed exceeded the

punishment recommended by the State and agreed to by Appellant, entitling him

to appeal his eight-year sentence. See Tex. Code Crim. Proc. Ann. art. 44.02

(West 2006); Tex. R. App. P. 25.2(a). But the indictment in F-2014-1078-F was

dismissed in early 2016 after the State re-indicted Appellant in the instant cause


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number. The plea-bargain documents signed at the time of Appellant’s guilty

plea in the instant cause number reflect that the State recommended a sentence

of eight years’ confinement with no fine in exchange for Appellant’s guilty plea to

the indicted offense. This was the sentence imposed by the trial court.

        Appellant’s trial counsel also responded, filing a motion to withdraw and

noting that the trial court’s certification divested this court of any jurisdiction over

Appellant’s attempted appeal.      Indeed, the record before this court does not

show that Appellant’s sentence exceeded the State’s recommendation, that

Appellant desires to appeal a matter that was raised by written motion filed and

ruled on before trial, or that the trial court granted Appellant permission to appeal.

See Tex. Code Crim. Proc. Ann. art. 44.02; Tex. R. App. P. 25.2(a)(2). Thus, in

accordance with the trial court’s certification, we dismiss this appeal. See Tex.

R. App. P. 25.2(d), 43.2(f); Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim.

App. 2006). Because we have no jurisdiction to address anything other than the

effect of the trial court’s certification, we take no action on counsel’s motion to

withdraw. See Chavez, 183 S.W.3d at 680 (“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 . . . .”).




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                                         /s/ Lee Gabriel

                                         LEE GABRIEL
                                         JUSTICE

PANEL: LIVINGSTON, C.J.; GABRIEL and SUDDERTH, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: September 22, 2016




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