












 
 
 
 
 
                             NUMBER
13-05-106-CR
 
                         COURT OF
APPEALS                   
 
               THIRTEENTH
DISTRICT OF TEXAS
 
                  CORPUS CHRISTI
- EDINBURG
 
 
 
                                             
ANDRE LAMON MORGAN,                                         Appellant,
 
                                           v.
 
THE STATE OF TEXAS,                                              Appellee.
 
 
 
                  On appeal from
the 174th District Court
                            of Harris County, Texas.
 
 
 
                              O P
I N I O N
 
                 Before Justices Hinojosa, Ya_ez, and Castillo
                                  Opinion
by Justice Castillo
 




Appellant,
Andre Lamon Morgan, raises six issues on appeal, contending that  his plea of no contest to the offense of
murder[1]
was involuntary, the trial court erred in failing to withdraw the plea sua
sponte, the conviction is void because the pre-sentence investigation report
was reviewed prior to a finding of guilt, in violation of his rights to due
process under the federal and the state constitutions, and the sentence of
thirty years constitutes cruel and unusual punishment in violation of his
rights under the federal and state constitutions.  The State has filed a motion to dismiss for
want of jurisdiction.  We dismiss for want
of jurisdiction.
I.  BACKGROUND
Court
documents dated September 20, 2004, show the following:  (1) the State agreed to (a) abandon the two
enhancement counts alleged in the indictment, (b) a pre-sentence investigation
("PSI"), and (c) a cap on punishment at forty years' confinement in
the Texas Department of Criminal Justice; (2) Morgan judicially confessed to
committing murder as alleged in the indictment; (3) Morgan waived his
constitutional rights to a jury trial and to confront witnesses, and his right
against self-incrimination; and (4) he acknowledged in writing his
understanding of the statutory admonishments and the proceedings against him
and the consequences of his plea of no contest.[2]  On September 20, 2004, Morgan appeared before
the trial court to enter a plea of no contest to the offense of murder.  At the plea hearing, the State abandoned the
enhancement allegations in the indictment. 
After admonishing Morgan, the trial court affirmatively accepted
Morgan's no contest plea but deferred a finding of guilt, pending completion of
the PSI.  




On
January 7, 2005, Morgan filed a motion to withdraw his plea on grounds that it
was not knowingly and voluntarily made. 
At a hearing held January 12, 2005, Morgan testified as to his motion to
withdraw the plea, and the trial court denied the motion.  The trial court stated that the PSI was
complete, and it sustained the defense's sole objection to the PSI on grounds
that it contained recorded testimony that was not subject to
cross-examination.  Morgan testified
during the sentencing phase and adduced evidence to support his claim of
innocence and the involuntariness of his guilty plea.  The trial court pronounced Morgan guilty of
murder, assessed punishment at a thirty-year prison term, and entered judgment
accordingly.  This appeal ensued.  The trial court has certified that this is
not a plea bargain case and Morgan has the right of appeal.  See Tex.
R. App. P. 25.2(a)(2), (d).  
II.  JURISDICTION




The
State filed a motion to dismiss for want of jurisdiction on grounds that this
is a plea-bargain case and Morgan does not have the right to appeal under rule
25.2(a)(2) of the Texas Rules of Appellate Procedure.  See Tex.
R. App. P. 25.2(a)(2).  The State
reasserts its argument in its appellate brief. 
In a plea‑bargain case, we review the record to determine (1) our
jurisdiction, and (2) whether the trial court's certification is correct.  See Dears v. State, 154 S.W.3d 610, 613
(Tex. Crim. App. 2005); see also Greenwell v. Court of Appeals 13th
Judicial Dist., 159 S.W.3d 645, 649 (Tex. Crim. App. 2005); Ernst v.
State, 159 S.W.3d 668, 670 (Tex. App.BCorpus Christi 2005, no pet.).  We turn to the record to determine first
whether this is a plea-bargain case.
During
the hearing on his motion to withdraw the no contest plea, Morgan testified as
follows on cross-examination:
Q:  You plead no contest to this charge, right?
 
A:  Yes.
 
Q:   [Defense counsel] explained to you what the
plea bargain in this case was, right? right?
 
A:  Yes, sir.
 
Q:  That the State would abandon two enhancement
paragraphs and cap your punishment, possible punishment at 40 years, right?
 
A:  Yes, sir.
 




There are two basic kinds of plea‑bargaining, charge‑bargaining
and sentence-bargaining.  See Shankle
v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003) (en banc).  Charge‑bargaining involves whether a
defendant will plead guilty to the offense that has been alleged or to a lesser
or related offense, and whether the prosecutor will dismiss, or refrain from
bringing, other charges.  Id.  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.; see Perkins v.
Court of Appeals, 738 S.W.2d 276, 283 (Tex. Crim. App. 1987) (construing
"cap" on punishment as part of a plea agreement).  A plea‑bargained case is one in which
the defendant pleaded guilty or nolo contendere and the punishment did not
exceed the punishment recommended by the prosecutor and agreed to by the
defendant.  Threadgill v. State,
120 S.W.3d 871, 872 (Tex. App.B Houston [1st Dist.] 2003, no pet.); Waters
v. State, 124 S.W.3d 825, 826 (Tex. App.B
Houston [14th Dist.] 2003, pet. ref'd) (holding that a conviction based on an
agreement that puts a cap on punishment for the charged offense is subject to
the restrictions on appeals from plea bargains set forth in Texas Rule of
Appellate Procedure 25.2) (citing Tex.
R. App. P. 25.2)). 
In this case, the trial court, without objection, treated the plea
consistent with proceedings in a plea-bargain case.  In accordance with the terms of the
plea-bargain agreement with the State, the trial court sentenced Morgan to
confinement for a term within the agreed-to cap on punishment.  We conclude that Morgan entered a no contest plea
with a recommendation from the State with regard to punishment.  Thus, rule 25.2(a)(2) applies.  
In a plea bargain
caseBthat 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 defendantBa 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.  
 
Tex. R. App. P. 25.2(a)(2).  The plain import
of the rule is that appeals from plea‑bargain cases are limited to the
situations set forth in the rule.  See
Greenwell, 159 S.W.3d at 649. 
However, our inquiry does not end there. 
We must decide whether the trial court's certification is correct.  Dears, 154 S.W.3d at 613; Greenwell,
159 S.W.3d at 649.  




Our conclusion
that this is a plea-bargain case conflicts with the trial court's rule 25.2
certification indicating that "this is not a plea-bargain case."  The purpose of the certification requirement
is to efficiently sort appealable cases from non‑appealable cases.  Greenwell, 159 S.W.3d at 649.  Certification allows appealable cases to move
through the system unhindered while eliminating, at an early stage, the time
and expense associated with non‑appealable cases.  Id. 
When appeal is barred by rule 25.2(a)(2), the clerk's and court
reporter's records need not be prepared, counsel need not be appointed, and
briefs need not be filed.  Id.  On the other hand, if there is something in
whatever record does exist that indicates that an appellant has the right to
appeal, the court of appeals must determine whether the certification is
deficient and resolve the conflict.  Id.  Thus, we must resolve the conflict.  Id. 




We have reviewed
the record, as Dears[3]
instructs, and conclude that this is a plea-bargain case.  Morgan pleaded no contest to the charged
offense, the punishment did not exceed the punishment recommended by the State,
and it is consistent with Morgan's agreement, as the evidence demonstrates.  There is no written motion ruled on before
trial.  See Tex. R. App. P. 25.2(a)(2)(A).  The trial court did not affirmatively grant
permission to appeal.  See Tex. R. App. P. 25.2(a)(2)(B).  The trial court certified that Morgan has the
right to appeal on grounds that the case " is not a plea-bargain
case."  We conclude that the
certification is incorrect.  The record
does not demonstrate that Morgan has the right to appeal.  We resolve the deficiency in the trial
court's certification against a finding of jurisdiction.  Accordingly, we do not have jurisdiction to
review Morgan's issues on appeal.  Tex. R. App. P. 25.2(a); see Young
v. State, 8 S.W.3d 656, 666‑67 (Tex. Crim. App. 2000) (en banc).  
III.  DISPOSITION
We grant the
State's motion and dismiss the appeal for want of jurisdiction.  Tex.
R. App. P. 25.2(a)(2).  
ERRLINDA CASTILLO
Justice
Publish.
Tex. R. App. P. 47.2(b).
 
Opinion delivered and filed
this 2nd day of February, 2006.   
 
 




[1] See Tex.
Pen. Code Ann. _19.02(b) (Vernon 2003).  


[2] Morgan authenticated the documents in writing and
orally.  


[3] Dears v. State, 154 S.W.3d 610, 613 (Tex.
Crim. App. 2005).  


