Opinion
Nos. 01-07-00677-CR, 01-07-00716-CR
Opinion issued July 3, 2008. DO NOT PUBLISH. See Tex. R. App. P. 47.2(b).
On Appeal from the 268th District Court Fort Bend County, Texas, Trial Court Cause Nos. 42,920 and 45,590.
Panel consists of Chief Justice RADACK and Justices JENNINGS and BLAND.
MEMORANDUM OPINION
In exchange for appellant Richard Fitzgerald Barroso's plea of guilty, the State agreed to reduce two first-degree felony charges for aggravated sexual assault of a child to second-degree felony charges for sexual assault of a child. See TEX. PENAL CODE ANN. § 22.011 (Vernon Supp. 2007). After the trial court accepted Barroso's guilty pleas to the reduced charges, but before the punishment hearing, Barroso signed a waiver of his right to appeal and requested a pre-sentence investigation. When the pre-sentence investigation was complete, the trial court held a punishment hearing, which culminated in its decision to sentence Barroso to ten years' incarceration for each offense, with the sentences to run concurrently. On appeal, Barroso attacks the legal and factual sufficiency of the evidence supporting both convictions. We dismiss the appeals for want of jurisdiction. According to Texas Rule of Appellate Procedure 25.2(a)(2),
A defendant in a criminal case has the right of appeal. . . . The trial court shall enter a certification of the defendant's right of appeal in every case in which it enters a judgment of guilt or other appealable order. In a plea bargain case — that is, a 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.TEX. R. APP. P. 25.2. Unless the trial court gives its permission for the appeal of an agreed plea bargain case that has no pretrial motions, we have no option but to dismiss it. Menjivar v. State, ___ S.W.3d ___, 2007 WL 4099409, at *3 (Tex.App.-Houston [1st. Dist.] Nov. 15, 2007, no pet. h.). The trial court certification in each cause reads:
I, judge of the trial court, certify that this criminal case:
. . . is a plea-bargain case, and the defendant has NO right of appeal, except as to sentencing.
The defendant has waived the right of appeal as to guilt/innocence only.Barroso, in exchange for a reduction of two first-degree felony offenses to two second-degree felony offenses, pleaded guilty. The Court of Criminal Appeals has declared that
"Plea bargaining" is a process which implies a preconviction bargain between the State and the accused whereby the accused agrees to plead guilty or nolo contendere in exchange for a reduction in the charge, a promise of sentencing leniency, a promise of a recommendation from the prosecutor to the trial judge as to punishment, or some other concession by the prosecutor that he will not seek to have the trial judge invoke his full, maximum implementation of the conviction and sentencing authority he has. . . .Perkins v. Court of Appeals, 738 S.W.2d 276, 282 (Tex.Crim.App. 1987) (quotation omitted; emphasis added); see State v. Moore, 240 S.W.3d 248, 250 (Tex.Crim.App. 2007) (acknowledging that prosecutors may agree to charge reductions in exchange for guilty plea). Barroso's issues on appeal all challenge the propriety of his convictions, but, as reflected in the trial court's certification, Barroso waived his right to challenge his convictions when he accepted the State's offer to reduce the charges against him in exchange for his guilty pleas. Because the trial court's certifications of Barroso's right to appeal do not extend to any of the issues raised by Barroso, we dismiss these appeals for want of jurisdiction.
We need not address whether Barroso would have the right to appeal issues related to punishment because that question is not before us.