Opinion
No. 01-03-00630-CR.
April 29, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 263rd District Court Harris County, Texas, Trial Court Cause No. 931879.
Panel consists of Justices NUCHIA, JENNINGS, and KEYES.
MEMORANDUM OPINION
Appellant pleaded guilty to aggravated assault with an agreement from the State that his punishment would not exceed confinement for 12 years. The trial court sentenced appellant to confinement for 12 years. Appellant filed a timely notice of appeal. Appellant's court-appointed counsel filed a brief concluding that this appeal is without merit and a motion to withdraw as counsel. Counsel's brief meets the requirements of Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400 (1967), by presenting a professional evaluation of the record that demonstrates the lack of arguable grounds of error. See High v. State, 573 S.W.2d 807, 811 (Tex.Crim.App. 1978); Moore v. State, 845 S.W.2d 352, 353 (Tex. App.-Houston [1st Dist.] 1992, pet. ref'd). Counsel represents that he served a copy of the brief on appellant. Counsel also advised appellant of his right to examine the appellate record and file a pro se brief. See Stafford v. State, 813 S.W.2d 503, 510 (Tex.Crim.App. 1991). More than 30 days have passed, and appellant has not filed a pro se brief. We have reviewed the record and counsel's brief. We find that we lack jurisdiction over the appeal. We held in Threadgill v. State, 120 S.W.3d 871, 872 (Tex. App.-Houston [1st Dist.] 2003, no pet.), that an agreement to a punishment cap is a plea-bargain agreement within the meaning of Rule 25.2(a)(2). The Fourteenth Court of Appeals held likewise in Waters v. State, 124 S.W.3d 825, 826 (Tex. App.-Houston [14th Dist.] 2003, no pet.). Therefore appellant had a right to appeal only matters raised by written motion filed and ruled on before trial, or with the trial court's permission. The trial court certified appellant's right to appeal. However, the certification states that this "is not a plea-bargain case, and the defendant has the right to appeal." The Rule 25.2 requirements recited in a certification must be true and supported by the record. Waters, 124 S.W.3d at 826; Ajagbe v. State, No. 01-03-00115-CR, slip op. at 2 (Tex. App.-Houston [1st Dist.] Feb. 5, 2004, no pet.) (designated for publication). Because this was a plea-bargained case, the court's certification of the right to appeal was incorrect. The court did not certify that appellant had a right to appeal from his plea bargain. Because the record (including the trial court's certification) does not reflect that appellant received adverse rulings on any pretrial written motions, or that he had the trial court's permission to appeal from a plea bargain, we hold that we have no jurisdiction over the appeal. We grant counsel's motion to withdraw. See Stephens v. State, 35 S.W.3d 770, 771 (Tex. App.-Houston [1st Dist.] 2000, no pet.). We dismiss the appeal for lack of jurisdiction.
Rule 25.2(a)(2) of the Texas Rules of Appellate Procedure provides that, in a plea-bargained case in which the punishment assessed does not exceed the plea agreement, a defendant may appeal only those matters that were raised by written motion filed and ruled on before trial, or after obtaining the trial court's permission to appeal. Tex.R.App.P. 25.2(a)(2).
Counsel has a duty to inform appellant of the result of his appeal and also to inform him that he may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex.Crim.App. 1997).