Francisco Javier Garcia Jr. v. The State of Texas--Appeal from 228th District Court of Harris County

Dismissed and Memorandum Opinion filed August 30, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-07-00643-CR

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FRANCISCO JAVIER GARCIA, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 968440

M E M O R A N D U M O P I N I O N

Appellant entered a guilty plea without an agreed recommendation as to punishment to sexual assault of a child between the ages of fourteen and seventeen. On June 3, 2004, the trial court deferred a finding of guilt, placed appellant on community supervision for ten years, and assessed a $200 fine. The State subsequently moved to adjudicate appellant=s guilt. Appellant entered a plea of true to the allegations in the State=s motion to adjudicate. The trial court adjudicated appellant=s guilt and sentenced him on June 27, 2007, to confinement for five years in the Institutional Division of the Texas Department of Criminal Justice and assessed a fine of $200. Appellant filed a pro se notice of appeal.[1] We dismiss the appeal.

The trial court entered a certification of the defendant=s right to appeal in which the court certified that this is a plea bargain and the defendant has no right of appeal. See Tex. R. App. P. 25.2(a)(2). The record reflects that this is not a plea bargain case, however. Thus, the certification is not supported by the record, and ordinarily, we request a corrected certification. See Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005); Tex. R. App. P. 37.1. In a plea bargain case for deferred adjudication community supervision, the plea bargain is complete at the time the defendant enters his plea of guilty in exchange for deferred adjudication community supervision. Hargesheimer v. State, 182 S.W.3d 906, 911-12 (Tex. Crim. App. 2006). Even though a defendant enters a plea of true to the motion to adjudicate, the rules governing plea-bargain appeals do not apply. A[W]hen the defendant appeals from the proceeding on the motion to adjudicate guilt, Rule 25.2(a)(2) will not restrict appeal . . . .@ Id. at 913.[2]

Our record contains a waiver of appeal signed by appellant on June 27, 2007, at the proceeding where his guilt was adjudicated. The waiver states that appellant agrees to waive his right to appeal as part of his agreement with the State to plead true to the motion to adjudicate. The waiver further recites that AI understand that the prosecutor will recommend that I be adjudicated guilty in this cause and my punishment should be set at 5 years and a fine of $200.00 and I agree to that recommendation.@ This statement is separately initialed by appellant. A pretrial or presentencing waiver of the right to appeal is binding if the waiver is made voluntarily, knowingly, and intelligently. Ex parte Delaney, 207 S.W.3d 794, 799 (Tex. Crim. App. 2006). If the actual punishment is determined by the plea agreement when the waiver is made, the record indicates that the waiver is knowingly and intelligently made. Id. The trial court in this case assessed punishment in accordance with the terms of the agreement. Therefore, appellant=s waiver is binding.

Accordingly, we dismiss the appeal.

PER CURIAM

Judgment rendered and Memorandum Opinion filed August 30, 2007.

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] The notice of appeal was filed July 30, 2007. The record reflects that the notice was timely mailed on July 27, 2007, the thirtieth day after sentencing. See Tex. R. App. P. 9.2(b), 26.2.

[2] In Hargesheimer, the Court added that AArticle 42.12 '5(b) will continue to prohibit the appeal of the trial court=s decision to adjudicate guilt.@ 182 S.W.3d at 913. This portion of the Hargesheimer holding has now been abrogated by the amendment of article 42.12 section 5(b) enacted by Senate Bill 909. See Act eff. June 15, 2007, 80th Leg. R.S., ch. 1308, ' 53, 2007 Tex. Sess. Law Serv. ___ . (AThis determination is reviewable in the same manner as a revocation hearing conducted under Section 21 of this article in a case in which an adjudication of guilt had not been deferred.@).