                                                                                           ACCEPTED
                                                                                       01-15-00151-CR
                                                                            FIRST COURT OF APPEALS
                                                                                    HOUSTON, TEXAS
                                                                                  4/24/2015 9:54:54 AM
                                                                                 CHRISTOPHER PRINE
                                                                                                CLERK

           Nos. 01-15-00149-CR, 01-15-00150-CR, 01-15-00151-CR

                                       In the                         FILED IN
                                                               1st COURT OF APPEALS
                                Court of Appeals                   HOUSTON, TEXAS
                                      For the                  4/24/2015 9:54:54 AM
                              First District of Texas          CHRISTOPHER A. PRINE
                                    At Houston                         Clerk


                                

                        Nos. 1974171, 1974172, 2001637
                   In the County Criminal Court at Law No. 4
                            Of Harris County, Texas

                               

                         JAMES E. GUZMAN, pro se
                                Appellant
                                   V.
                          THE STATE OF TEXAS
                                Appellee
                                

 STATE’S MOTION TO DISMISS FOR WANT OF JURISDICTION
                               

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      THE STATE OF TEXAS, represented by the undersigned Assistant District

Attorney, moves this Court to dismiss this appeal for want of jurisdiction because

appellant was convicted pursuant to pleas of guilty and was sentenced in

accordance with a plea bargain agreed upon between himself and the State for each

case. Additionally, the trial court certified appellant did not have the right to

appeal, denied appellant permission to appeal, and no written pre-trial motions
were filed and ruled upon by the trial court before appellant’s guilty pleas. In

support thereof, the State respectfully submits the following.

                            STATEMENT OF THE CASE

       Appellant was charged by information in three cases with misdemeanor

assault. (C.R. I at 7; C.R. II at 7; C.R. III at 6)1 In two cases, the information was

enhanced with a prior conviction for felony assault-family member. (C.R. I at 7;

C.R. II at 7) In his third assault case, the information was enhanced with a prior

conviction for misdemeanor assault. (C.R. III at 6)

       Appellant pled guilty to all three cases on January 5, 2015, pursuant to a plea

bargain agreement reached between himself and the State. (C.R. I at 10-11; C.R. II

at 10-11; C.R. III at 10-11) Appellant was sentenced to 120 days in the Harris

County Jail with credit for eight days served. (C.R. I at 16; C.R. II at 16; C.R. III

at 15) The sentences were to run concurrently and matched the plea bargain

agreement reached between appellant and the State. (C.R. I at 16-17; C.R. II at 16-

17; C.R. III at 15-16; see C.R. I at 10; C.R. II at 10; C.R. III at 10) Upon his pleas

of guilty, the trial court certified that each case was a “plea-bargain case, and

[appellant] has NO right of appeal,” signed by appellant in each case. (C.R. I at

19; C.R. II at 19; C.R. III at 18)


1
 C.R. I refers to the Clerk’s Record for cause number 1971471 (No. 01-15-00149-CR);
C.R. II refers to the Clerk’s Record for cause number 1974172 (No. 01-15-00150-CR);
C.R. III refers to the Clerk’s Record for cause number 2001637 (No. 01-15-00151-CR).

                                              2
       As part of his pleas of guilty, appellant signed a waiver of appeal along with

documentation stating he was satisfied with the evidence disclosed to his counsel

and withdrawing any requests for further discovery. (C.R. I at 10-14; C.R. II at 10-

14; C.R. III at 10-14) The record contains no written motions filed and ruled upon

by the trial court prior to appellant’s pleas.

       Appellant timely filed a pro se notice of appeal, however the trial court

certified appellant had no right to appeal in any of his cases. (C.R. I at 19, 22; C.R.

II at 19, 22; C.R. III at 18, 21; see C.R. I at 17, 23; C.R. II at 17, 23; C.R. III at 16,

22) At a hearing held on February 5, 2015, appellant affirmed he signed waivers

of appeal and understood the trial judge’s admonishment that the pleas were final

“and there was no appeal.” (R.R. I at 5, 9; R.R. II at 5, 9; R.R. III at 5, 9)2 The

trial court denied appellant permission to appeal. (R.R. I at 8; R.R. II at 8; R.R. III

at 8) On February 15, 2015, appellant filed a Pro Se Motion to Reverse and

Remand “to dismissal due to insufficient evidence” that was denied by the trial

court. (C.R. I at 24; C.R. II at 24; C.R. III at 23)

                 APPELLANT FAILED TO INVOKE THIS COURT’S
                      JURISDICTION OVER HIS APPEALS

       In his brief, appellant argues that he is innocent of the offenses charged.

(Appellant’s Brief at 1) Appellant states in his brief that the complainants in the

2
 R.R. I refers to the Reporter’s Record for cause number 1971471 (No. 01-15-00149-CR);
R.R. II refers to the Reporter’s Record for cause number 1971472 (No. 01-15-00150-CR);
R.R. III refers to the Reporter’s Record for cause number 2001637 (No . 01-15-00151-CR).

                                              3
assault cases “are also incarcerated for family violence,” and that trial counsel was

ineffective for failing to disclose the complainants “had intensive family violence

cases pending and warrants.” (Appellant’s Brief at 1) Appellant argues that he

“was never the assaulter” and that the “outcome of trial would’ve been different

had the arrest records of [the complainants] been made aware to the Court by the

ineffective assistance of trial counsel.” (Appellant’s Brief at 2)

      Because appellant’s sentences did not exceed the agreed-upon punishment

range of his plea bargain, the trial court certified appellant had no right to appeal,

no matters were raised by written motion and ruled upon before his pleas, and the

trial court did not grant appellant permission to appeal his convictions, appellant

has not fulfilled the requirements to invoke this Court’s jurisdiction over his

appeal. Therefore, appellant’s appeal must be dismissed for want of jurisdiction.

      Texas Rule of Appellate Procedure 25.2(a)(2) provides:

             [i]n a plea bargain case. . . in which a defendant’s plea
             was guilty . . . 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.

      This requirement to invoke appellate jurisdiction complies with Texas Code

of Criminal Procedure art. 44.02, which states a defendant

             who has been convicted upon either his plea of guilty or
             plea of nolo contendere before the court and the court,

                                          4
             upon the election of the defendant, assesses punishment
             and the punishment does not exceed the punishment
             recommended by the prosecutor and agreed to by the
             defendant and his attorney may prosecute his appeal, he
             must have permission of the trial court, except on those
             matters which have been raised by written motion filed
             prior to trial.

      The Court of Criminal Appeals has also stated that appellate courts, “while

having jurisdiction to ascertain whether an appellant who plea-bargained is

permitted to appeal . . . must dismiss a prohibited appeal without further action,

regardless of the basis for the appeal.” Chavez v. State, 183 S.W.3d 675, 680 (Tex.

Crim. App. 2006). The Chavez Court held, in those cases where an appellant was

sentenced “pursuant to the agreed terms of a plea bargain,” did not file any pre-trial

written motion ruled upon before trial, and did not receive permission from the

trial court to appeal, an appellate court must dismiss the appeal and “no inquiry

into even possibly meritorious claims may be made.” Id; see Ekwere v. State, No.

01-15-00131-CR, 2015 WL 1735492 at *1 (Tex. App.—Houston [1st Dist.] April

14, 2015, no pet. h.) (mem. op., not designated for publication) (dismissing

defendant’s pro se appeal where defendant pled guilty to felony theft, was

sentenced in accordance with a plea bargain agreement with the State, and the trial

court’s certification that appellant did not have the right to appeal was supported

by the record).




                                          5
      The Court of Criminal Appeals has also held TEX. R. APP. P. 25.2 does “not

impermissibly abridge the right to appeal,” as the right to appeal is “guaranteed

only by statute and [ ] the legislature did not expressly or even impliedly make an

exception for appeals of jurisdictional issues that fall outside of the statutory

exceptions. . . .” Griffin v. State, 145 S.W.3d 645, 649 (Tex. Crim. App. 2004).

      While appellate courts must determine whether certifications of an

appellant’s right to appeal are defective, where a trial court’s certification that an

appellant has no right to appeal is supported by the record, and a plea-bargaining

appellant cannot satisfy any statutory exception to invoke an appellate court’s

jurisdiction to hear an appeal, the appellate court must dismiss the appeal for want

of jurisdiction. See Terrell v. State, 245 S.W.3d 602, 604 (Tex. App.—Houston

[1st Dist.] 2007, no pet.) (finding defendant’s appeal “must” be dismissed where

defendant pled guilty and received punishment within the terms of defendant’s plea

agreement with the State, the trial court certified defendant had no right to appeal,

no pre-trial written motions were ruled upon, the trial court did not give permission

to appeal, and the certifications of defendant’s right to appeal were supported by

the record).

      Here, appellant was convicted and sentenced pursuant to a plea bargain

agreement reached between himself and the State. (C.R. I at 10-11, 16-17; C.R. II

at 10-11, 16-17; C.R. III at 10-11, 15-16; see C.R. I at 27; C.R. II at 27; C.R. III at



                                          6
26) No pre-trial motions were filed by appellant or his attorney and ruled upon

before his pleas. Appellant received notice of the effect his agreed-upon pleas

would have regarding subsequent attempts to appeal, both in writing and by trial

court admonishment. (See C.R. I at 10; C.R. II at 10; C.R. III at 10; R.R. I at 5, 9;

R.R. II at 5, 9; R.R. III at 5, 9) Appellant waived his right to appeal and the trial

court certified that appellant did not have the right to appeal, as his convictions

were the result of a plea bargain agreement. (C.R. I at 10, 19; C.R. II at 10, 19;

C.R. III at 10, 18)

       Additionally, the trial court’s certifications are supported by the record.

Appellant agreed that he pled guilty to the offenses and received the same sentence

as that listed in the plea agreement documentation. (R.R I at 4-5; R.R. II at 4-5;

R.R. III at 4-5) Appellant recalled the trial court’s admonishment, upon his guilty

pleas, regarding his waiver of the right to appeal. (R.R. I at 5, 9; R.R. II at 5, 9;

R.R. III at 5, 9) Appellant’s signature is also on the plea bargain documentation,

including the waiver of appeal and the trial court’s certification that appellant had

no right to appeal, in each case. (C.R. I at 10, 19; C.R. II at 10, 19; C.R. III at 10,

18) Finally, the trial court denied appellant permission to appeal his convictions.

(R.R. I at 8; R.R. II at 8; R.R. III at 8)




                                             7
      Therefore, because appellant failed to satisfy the requirements to invoke this

Court’s jurisdiction over these cases, appellant’s appeal in the abovementioned

cause numbers should be dismissed for want of jurisdiction.

                              PRAYER FOR RELIEF

      WHEREFORE, the State respectfully requests this Court dismiss the appeals

for want of jurisdiction.



                                             Respectfully submitted,

                                             /s/ Patricia McLean
                                             PATRICIA MCLEAN
                                             Assistant District Attorney
                                             Harris County, Texas
                                             1201 Franklin, Suite 600
                                             Houston, Texas 77002
                                             (713) 755-5826
                                             TBC No. 24081687



                            CERTIFICATE OF SERVICE

      This is to certify that a copy of the foregoing instrument will be mailed to

appellant at the following addresses:

James E. Guzman, pro se
TDC# 01023457; SPN 01125709
Texas Department of Criminal Justice
Joe F. Gurney Transfer Facility
1385 FM 3328
Palestine, TX 75803



                                         8
James E. Guzman, pro se
TDC# 01023457; SPN 01125709
Texas Department of Criminal Justice
P.O. Box 99
Huntsville, TX 77342-0099



                                           PATRICIA MCLEAN
                                           Assistant District Attorney
                                           Harris County, Texas
                                           1201 Franklin, Suite 600
                                           Houston, Texas 77002
                                           (713) 755-5826
                                           TBC No. 24081687

Date: April 24, 2015




                                       9
