                              Fourth Court of Appeals
                                    San Antonio, Texas
                                MEMORANDUM OPINION
                                        No. 04-15-00651-CR

                                    Antonine D. HENDERSON,
                                             Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                     From the 175th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2014CR3080
                            Honorable Mary D. Roman, Judge Presiding

PER CURIAM

Sitting:          Sandee Bryan Marion, Chief Justice
                  Karen Angelini, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: December 16, 2015

DISMISSED

           Antonine Henderson appeals the trial court’s judgment sentencing him to ten years in

prison for possession of more than 28 grams and less than 200 grams of a controlled substance,

penalty group 3. The trial court signed a certificate stating this “is a plea-bargain case, and the

defendant has NO right of appeal.” See TEX. R. APP. P. 25.2(a)(2). Because this court must dismiss

an appeal “if a certification that shows the defendant has the right of appeal has not been made

part of the record,” we gave Henderson notice that the appeal would be dismissed unless an

amended trial court certification showing he has the right to appeal were made part of the appellate
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record. See TEX. R. APP. P. 25.2(d); 37.1; Daniels v. State, 110 S.W.3d 174 (Tex. App.–San

Antonio 2003, order), disp. on merits, No. 04-03-00176-CR, 2003 WL 21508347 (July 2, 2003,

pet. ref’d) (not designated for publication).

        Henderson has filed a response in which he argues that the trial court did not assess

punishment in accordance with the plea agreement. He contends that because the trial court did

not follow the written plea agreement, Henderson does have a right of appeal and the trial court’s

certification is therefore defective. Henderson requests this court to direct the trial court to

reconsider its certification. See Marsh v. State, 444 S.W.3d 654, 659 (Tex. Crim. App. 2014)

(stating court of appeals may order trial court to reconsider certification that appears to be

defective); Dears v. State, 154 S.W.3d 610 (Tex. Crim. App. 2005) (holding court of appeals

should review clerk’s record to determine whether trial court’s certification is accurate). After

reviewing the record, we conclude the punishment assessed by the court did not exceed the

punishment recommended by the prosecutor and agreed to by the defendant and hold the trial

court’s certification accurately states that this is a plea bargain case and Henderson does not have

a right to appeal.

                                       The Plea Agreement

        Henderson, his attorney, and the prosecutor signed a written plea bargain in which they

agreed Henderson would plead guilty or no contest to possession of more than 28 grams and less

than 200 grams of a controlled substance, penalty group 3, and the State would recommend

Henderson be fined $1,500 and sentenced to three years in prison. The agreement stated the

sentence would run concurrently with those in four other cases and five other causes would be

taken into consideration. Beneath the signatures on the plea document was a “non-binding

recommendation” that did “not constitute part of the formal plea agreement.” This



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recommendation was that Henderson would be subject to the full range of punishment if he did

not report to sentencing.

       At the subsequent plea hearing, the parties all represented the “non-binding

recommendation” as being part of the plea agreement. The reporter’s record of the hearing reflects

that the trial court admonished Henderson on the range of punishment and Henderson confirmed

that he understood it. The parties then advised the trial court there was a plea agreement and the

prosecutor stated the terms of the agreement on the record. With respect to sentencing, the

prosecutor stated the agreement was for three years’ incarceration and a $1,500 fine; that

Henderson was to be free pending sentencing; but if Henderson failed to appear for sentencing, he

would be subject to the full range of punishment. The prosecutor recited the same terms as in the

written agreement regarding concurrent sentences and causes to be taken into consideration. Both

Henderson and his attorney stated on the record that this was their understanding of the plea

bargain. Henderson then pled no contest. The court accepted the plea and found the State’s

evidence sufficient to substantiate guilt. The trial court postponed sentencing and iterated to

Henderson that if he did not appear for sentencing at 9:00 a.m. on June 16, 2015, he would be

subject to the full range of punishment.

                                           Sentencing

       Henderson did not appear at the scheduled sentencing hearing. The trial court issued a

capias and Henderson was brought before the court for sentencing on August 4, 2015. Henderson

acknowledged that his plea agreement required him to appear at the sentencing hearing and that if

he failed to do so, he would be subject to the full range of punishment. The trial court found

Henderson guilty. After defense counsel stated there was no legal reason why Henderson should

not be sentenced, the trial court sentenced him to ten years’ confinement, to run concurrently with

the sentences in the causes listed in the plea agreement. Also in accordance with the plea
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agreement, the trial court took five other causes into consideration. The trial court certified that

this is a plea bargain case and Henderson does not have a right of appeal.

                                             Discussion

       In response to our show cause order, Henderson argues that he has a right of appeal because

this is not a plea bargain case. He contends the trial court’s certification is therefore defective and

asks the court to order the trial court to prepare a corrected certification. Henderson argues that

this is not “a plea bargain case” because the punishment exceeded the three-year prison term

recommended by the prosecutor and agreed to by the defendant in the written plea agreement. We

disagree. The enforceable plea agreement was the one announced at the plea hearing, expressly

agreed to by the State and Henderson, and accepted by the court. See Brumley v. State, 359 S.W.3d

884, 886 (Tex. App.—Beaumont 2011, no pet.) (holding that where neither party objected to

variance between written plea agreement and that pronounced in open court at plea hearing and

accepted by court, the written agreement was implicitly rejected and the orally pronounced

agreement was enforceable).

       We also conclude that the court’s imposition of a ten year sentence was done pursuant to

an enforceable plea bargain. An express term of the agreement announced at the plea hearing made

Henderson subject to the full statutory range of punishment if he failed to appear for sentencing.

This term was knowingly and voluntarily agreed upon by Henderson and the State and was

accepted by the trial court. This case is similar to State v. Moore, 240 S.W.3d 248 (Tex. Crim.

App. 2007), in which the court held a similar term was a proper and enforceable term of a plea

bargain. In Moore, the plea agreement required the defendant to plead guilty and the State to

recommend a twenty-five year sentence. Id. at 249. It also provided for a postponement of

sentencing, but required the defendant to appear at sentencing and to not commit any new offenses

between the plea and sentencing hearings. Id. The parties agreed that if the defendant breached
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either of those provisions, the court could consider the full punishment range. Id. The Texas Court

of Criminal Appeals held these terms were knowingly and voluntarily agreed to, were accepted by

the trial court, and were proper and enforceable terms of a plea bargain. Id. at 254-55. When Moore

committed a new offense before sentencing, the State was released from its obligation to

recommend twenty-five years, and the court’s consideration of the full range of punishment and

imposition of punishment greater than twenty-five years was done pursuant to and in accordance

with the plea agreement. Id.

       The terms of Henderson’s plea bargain, as stated on the record at the plea hearing and

agreed to by Henderson, his attorney, and the prosecutor, were that Henderson would receive a

three-year sentence unless he failed to appear at the sentencing hearing, in which case, Henderson

would be subject to the full range of punishment. The trial court accepted Henderson’s plea of no

contest and admonished Henderson that if he did not appear for sentencing on June 16 at 9:00 a.m.,

“then the full range of punishment is available to the Court.” As in Moore, the consequence of not

appearing at the scheduled sentencing was expressly incorporated into the plea agreement. See 240

S.W.3d at 253. When Henderson failed to appear, the State was released from its obligation to

recommend a three-year sentence. The court’s assessment of punishment within the statutory range

was done in accordance with and pursuant to an enforceable plea agreement.

       Because there was a plea agreement and the court assessed punishment in accordance with

the agreement, Henderson may only appeal matters that were raised by written motion filed and

ruled on before trial or if the trial court granted permission to appeal. TEX. CODE CRIM. PROC. ANN.

44.02; TEX. R. APP. P. 25.2(a)(2). The clerk’s record does not contain any such filed and ruled-on

motions, and the judgment contains the notation: “Notice of Appeal: Denied.” Accordingly, the

record supports the trial court’s certification that this is a plea bargain case and Henderson does

not have a right to appeal. This court must dismiss an appeal “if a certification that shows the
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defendant has the right of appeal has not been made part of the record.” TEX. R. APP. P. 25.2(d).

We therefore dismiss this appeal.

                                                PER CURIAM

DO NOT PUBLISH




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