Marcus Carrera v. The State of Texas--Appeal from 262nd District Court of Harris County
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Dismissed and Memorandum Opinion filed June 3, 2010. In The Fourteenth Court of Appeals ____________ NO. 14-09-00703-CR ____________ MARCUS CARRERA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 262nd District Court Harris County, Texas Trial Court Cause No. 1194231 MEMORANDUM OPINION Appellant entered a plea of guilty to aggravated assault. Appellant and the State agreed that appellant s punishment would not exceed confinement in prison for more than twenty years. In accordance with the terms of this agreement with the State, the trial court sentenced appellant on August 12, 2009, to confinement for eighteen years in the Institutional Division of the Texas Department of Criminal Justice. Appellant filed a timely, written notice of appeal. We dismiss the appeal. Although the trial court mistakenly entered a certification of the defendant s right to appeal in which the court certified that this is not a plea bargain case and the defendant has the right of appeal, we have no jurisdiction over the appeal. See Tex. R. App. P. 25.2(a)(2). An agreement that places a cap on punishment is a plea bargain for purposes of Texas Rule of Appellate Procedure 25.2(a)(2). Waters v. State, 124 S.W.3d 825, 826 27 (Tex. App. Houston [14th Dist.] 2003, pet. ref=d) (holding reviewing court lacked jurisdiction where defendant pled guilty with a sentencing cap of ten years, even though trial judge mistakenly certified defendant had right of appeal); Threadgill v. State, 120 S.W.3d 871, 872 (Tex. App. Houston [1st Dist.] 2003, no. pet.) (holding statement in record indicating that there was no agreed recommendation did not convert proceeding into an open plea where plea was entered pursuant to agreed sentencing cap); see also Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003) (stating sentence-bargaining may be for recommendations to the court on sentences, including a recommended cap on sentencing). Because appellant s plea was made pursuant to a plea bargain, he may appeal only pre-trial rulings on matters raised by written motion or with the trial court s permission. See Tex. R. App. P. 25.2(a)(2). Our record contains no adverse rulings on pre-trial motions. The trial court s erroneous certification that the case is not a plea bargain case does not constitute permission to appeal. See Waters, 124 S.W.3d at 826 27. Accordingly, we dismiss the appeal. PER CURIAM Panel consists of Chief Justice Hedges and Justices Yates and Boyce. Do Not Publish Tex. R. App. P. 47.2(b). 2
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