DISMISSED; Opinion Filed May 5, 2020




                                       In The
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                No. 05-19-01280-CR
                                No. 05-19-01281-CR
                    WILFIDO AVILA INTERIANO, Appellant
                                   V.
                       THE STATE OF TEXAS, Appellee

                 On Appeal from the 203rd Judicial District Court
                               Dallas County, Texas
                 Trial Court Cause No. F14-76579-P & F13-70127-P

                          MEMORANDUM OPINION
                 Before Justices Myers, Partida-Kipness, and Reichek
                               Opinion by Justice Myers
      Wilfido Avila Interiano was charged with aggravated sexual assault of a child

under six years of age and arson. On June 24, 2019, appellant signed “open” plea

agreements with the State in which he judicially confessed to the offenses and

waived his right to appeal in exchange for the State striking the “under six years of

age” language from the aggravated sexual assault indictment. That same day,

appellant appeared in open court and was admonished by the trial court, including

the following:

             COURT:       And in the case ending in ’79, the Aggravated
             [Sexual] Assault of a Child, that actually – case had a higher
             penalty range. However, your lawyer was able to talk to the State
             of Texas, and they were able to strike and waive some language.

             APPELLANT:           Yes, ma’am.

             COURT:         The State filed a motion to strike the language
             indicating that the victim was under 6 years old. And by striking
             that language, the range of punishment in this case, because it is
             a first-degree felony, your punishment can be anywhere from 5
             years in the penitentiary all the way up to 99 years or life.

             APPELLANT:           Yes, ma’am.

             COURT: If they would not have struck the language, you know
             the minimum would have been 25 years, correct?

             APPELLANT:           Yes, ma’am.

                    *                            *                *

             COURT:         And, lastly, if I enter into these plea agreements,
             which I do plan to do, I will accept these pleas. You do not have
             a right to appeal these cases.

             APPELLANT:           Yes, ma’am.

      Appellant then pleaded guilty to both offenses. On September 12, 2019, the

trial court assessed punishment at sixteen years in prison in each case. One month

later, appellant filed his notices of appeal.

      On March 3, 2020, the trial court’s certifications of appellant’s right to appeal

were filed. They state the cases are “not a plea-bargain case, and the defendant has

the right of appeal.” After reviewing the clerk’s and reporter’s record, the Court had

concerns about the accuracy of the certifications and whether we had jurisdiction

over the appeals. We asked the parties for jurisdictional letter briefs. Although



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appellant did not respond, the State filed a letter brief agreeing that we lack

jurisdiction.

      Rule 25.2 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,

      (B) after getting the trial court’s permission to appeal, or

      (C) where the specific appeal is expressly authorized by statute.


TEX. R. APP. P. 25.2(a)(2). If the State abandons or strikes enhancement language

which would have increased the minimum term of imprisonment that the defendant

could have received or agrees to a cap on punishment in exchange for a defendant’s

plea of guilty, the requirements of rule 25.2(a)(2) apply. See Shankle v. State, 119

S.W.3d 808, 813‒14 (Tex. Crim. App. 2003); Carender v. State, 155 S.W.3d 929,

931 (Tex. App.—Dallas 2005, no pet.).

      Here, appellant signed plea agreements showing appellant waived his right to

appeal in exchange for the State agreeing to drop the language in the aggravated

sexual assault case that the victim was under 6 years of age. Each agreement states

“If the punishment assessed does not exceed the agreement between [appellant] and

the prosecutor, the Court must give its permission to you before you may appeal any

matter in this case except for those matters raised by written motions prior to trial.”

                                         –3–
Each agreement also has a section entitled “DEFENDANT’S WAIVER OF

RIGHTS AND JUDICIAL CONFESSION” that states appellant “[w]aives the right

to appeal to the Court of Appeals.” The trial court accepted appellant’s guilty pleas

and sentenced appellant to 16 years in prison in each case.

      Although the trial court’s certifications state these are not plea bargain cases

and appellant has the right to appeal, we conclude, based on the record, the

certifications are defective and should have indicated these were plea-bargain cases

and appellant had no right to appeal. See Dears v. State, 154 S.W.3d 610, 614‒15

(Tex. Crim App. 2005). Furthermore, the record shows there were no matters raised

by written motion and ruled on before trial. Thus, appellant has no right to appeal

under the rules. See TEX. R. APP. P. 25.2(a), (d).

      We dismiss these appeals.




                                            /Lana Myers/
                                            LANA MYERS
                                            JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)
191280F.U05




                                         –4–
                           Court of Appeals
                    Fifth District of Texas at Dallas
                                 JUDGMENT

WILFIDO AVILA INTERIANO,                     On Appeal from the 203rd Judicial
Appellant                                    District Court, Dallas County, Texas
                                             Trial Court Cause No. F14-76579-P.
No. 05-19-01280-CR         V.                Opinion delivered by Justice Myers.
                                             Justices Partida-Kipness and Reichek
THE STATE OF TEXAS, Appellee                 participating.

       Based on the Court’s opinion of this date, we DISMISS this appeal for want
of jurisdiction.


Judgment entered this 5th day of May, 2020.




                                       –5–
                           Court of Appeals
                    Fifth District of Texas at Dallas
                                 JUDGMENT

WILFIDO AVILA INTERIANO,                     On Appeal from the 203rd Judicial
Appellant                                    District Court, Dallas County, Texas
                                             Trial Court Cause No. F13-70127-P.
No. 05-19-01281-CR         V.                Opinion delivered by Justice Myers.
                                             Justices Partida-Kipness and Reichek
THE STATE OF TEXAS, Appellee                 participating.

       Based on the Court’s opinion of this date, we DISMISS this appeal for want
of jurisdiction.


Judgment entered this 5th day of May, 2020.




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