Opinion issued April 15, 2014




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-14-00078-CR
                            ———————————
                     JOSEPH EARL FRANCIS, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee



                    On Appeal from the 338th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1342243


                          MEMORANDUM OPINION

      Appellant Joseph Earl Francis pleaded guilty, pursuant to an agreement with

the State that punishment be capped at confinement for 35 years, to the first degree

felony offense of murder. See TEX. PENAL CODE ANN. § 19.02 (West 2011). The

trial court found appellant guilty and, in accordance with appellant’s plea
agreement with the State, assessed punishment at confinement for 35 years. The

trial court certified that this is a plea-bargain case and that appellant does not have

the right of appeal.   Nevertheless, appellant, proceeding pro se, 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. 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.

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 35 years.

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.] 2007, no pet.); Waters

v. State, 124 S.W.3d 825, 826–27 (Tex. App.—Houston [14th Dist.] 2003, pet.

ref’d);. The record of the plea hearing reflects that the trial court so admonished

appellant and that appellant understood that he would not have the right of appeal.


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The trial court assessed punishment at confinement for 35 years, in accordance

with appellant’s agreement with the State.1 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).

      The trial court did not rule adversely to appellant on any pre-trial matters

and did not give permission for appellant to appeal. See TEX. R. APP. P. 25.2(a)(2).

Because appellant has no right of appeal, we must 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 any pending motions as moot.

                                   PER CURIAM

Panel consists of Chief Justice Radack and Justices Massengale and Huddle.

Do not publish.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


1
      The trial court’s judgment states, “Term of Plea Bargain: Without an Agreed
      Recommendation.” Such language does not convert the plea to an open plea when,
      as here, the plea was entered pursuant to 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).

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