                                In The

                         Court of Appeals
              Ninth District of Texas at Beaumont
                     ____________________
                        NO. 09-17-00093-CR
                     _______________________

          ROBERTO ISMAEL ALVARADO, Appellant

                                  V.

                THE STATE OF TEXAS, Appellee


             On Appeal from the 253rd District Court
                    Liberty County, Texas
                   Trial Cause No. CR32361


                    MEMORANDUM OPINION

A grand jury indicted Alvarado for capital murder for

       . . . intentionally caus[ing] the death of an individual, namely,
Conbino Crasto, by shooting the said Conbino Crasto with a firearm,
and the defendant was then and there in the course of committing or
attempting to commit the offense of robbery of Conbino Crasto, and the
defendant did then and there use or exhibit a deadly weapon, to-wit: a
firearm, during the commission of said offense[.]




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Alvarado pleaded guilty to the lesser-included offense of murder. The jury found

Alvarado guilty, and after hearing evidence, the jury assessed punishment at sixty-

five years in prison and assessed a fine of $10,000.

      Alvarado’s first appellate counsel filed an Anders brief. See Anders v.

California, 386 U.S. 738 (1967); High v. State, 573 S.W.2d 807 (Tex. Crim. App.

[Panel Op.] 1978). Therein, counsel presented his professional evaluation of the

record and concluded there are no arguable grounds to be advanced in an appeal. We

advised Alvarado of his right to file a pro se response, after which Alvarado obtained

new appellate counsel who filed a brief. In four issues, Alvarado’s new appellate

counsel argues he was denied the effective assistance of counsel during the

punishment phase of trial and that he should receive a new sentencing hearing.

      At the time Alvarado pleaded guilty to the lesser-included offense of murder,

the trial court signed a certification stating “the defendant has waived the right of

appeal[.]” Later, following sentencing, the trial court signed a certification stating

“this criminal case [] is not a plea-bargain case, and the defendant has the right of

appeal[.]”

      The Court of Criminal Appeals has explained that there are two basic kinds

of plea-bargaining: charge-bargaining and sentencing-bargaining. See Shankle v.

State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003) (en banc).

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      Charge-bargaining involves questions of whether a defendant will
      plead guilty to the offense that has been alleged or to a lesser or related
      offense, and of whether the prosecutor will dismiss, or refrain from
      bringing, other charges. Sentence-bargaining may be for binding or
      non-binding recommendations to the court on sentences, including a
      recommended “cap” on sentencing and a recommendation for deferred-
      adjudication probation.

Id. (citations omitted). “[T]he State’s agreement to forgo prosecution for a pending

charge in exchange for a defendant’s plea to a lesser offense effectively places a cap

on the possible punishment.” See Thomas v. State, 516 S.W.3d 498, 502 (Tex. Crim.

App. 2017) (citing Kennedy v. State, 297 S.W.3d 338, 342 (Tex. Crim. App. 2009);

Shankle, 119 S.W.3d at 813-14). The law concerning the effect of a plea bargain

based on sentence bargaining also applies to plea bargains based on charge-

bargaining. Id.

      Rule 25.2 of the Texas Rules of Appellate Procedure provides that a defendant

in a plea-bargain case 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.” Tex. R. App. P. 25.2(a)(2). Rule 25.2 defines a plea bargain case as “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[.]” Id. A charge bargain agreement is an agreement to a punishment cap

and constitutes a plea agreement within the meaning of Rule 25.2. See id.; Shankle,

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119 S.W.3d at 812-13; Lemoins v. State, 37 S.W.3d 556, 557-59 (Tex. App.—

Beaumont 2001, no pet.).

      After reviewing the appellate record, we conclude that the trial court’s

certification following the jury’s determination of the punishment phase is incorrect.

Alvarado’s agreement to plead guilty to a lesser-included charge effectively placed

a cap on his possible punishment and constituted a charge bargain. See Thomas, 516

S.W.3d at 502; Shankle, 119 S.W.3d at 813-14. Alvarado’s charge bargain is

governed by the law concerning the effect of a plea bargain, and under Rule

25.2(a)(2), he would only be allowed to appeal the limited matters expressly outlined

in Rule 25.2. Alvarado’s punishment did not exceed what Alvarado agreed to, the

purported appeal does not pertain to any written pretrial motions, and the record does

not reflect that Alvarado obtained the trial court’s permission to appeal from a plea

bargain.

      The trial court’s second certification fails to comport with the record and

applicable rule, and therefore it is defective. See Dears v. State, 154 S.W.3d 610,

614 (Tex. Crim. App. 2005) (holding that a certification is defective if it is correct

in form but “when compared with the record before the court, proves to be

inaccurate”); Saldana v. State, 161 S.W.3d 763, 764 (Tex. App.—Beaumont 2005,

no pet.) (“Despite the trial court’s certification, the Rule 25.2 requirements recited

                                          4
in a certification must be true and supported by the record.”). We have no choice but

to dismiss this appeal for lack of jurisdiction. See Tex. R. App. P. 25.2(a)(2); see

also Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006) (en banc)

(dismissal required where appellant had no right of appeal because he was sentenced

pursuant to a plea bargain and did not satisfy an exception under Rule 25.2(a)(2));

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

pet. ref’d) (reviewing court lacked jurisdiction where defendant pleaded guilty with

a sentencing cap of ten years, even though trial judge certified defendant had right

of appeal).

      APPEAL DISMISSED.



                                                    _________________________
                                                       LEANNE JOHNSON
                                                             Justice


Submitted on December 10, 2018
Opinion Delivered January 9, 2019
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.




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