James Epps v. The State of Texas--Appeal from 71st District Court of Harrison County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-07-00042-CR
______________________________
JAMES EARL EPPS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 71st Judicial District Court
Harrison County, Texas
Trial Court No. 06-0142X
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION

James Earl Epps appeals his conviction for aggravated assault with a deadly weapon finding. Originally indicted for several offenses including murder, Epps entered a plea of guilty to a single count of aggravated assault pursuant to a plea bargain that the remaining charges would be dismissed. The terms of the plea bargain did not specify the punishment, and the trial court sentenced Epps to twenty years' imprisonment. On appeal, Epps raises a single point of error contending the trial court erred by assessing the maximum sentence. The State argues that, because Epps pled guilty pursuant to a plea bargain, this Court lacks jurisdiction. See Tex. R. App. P. 25.2; Shankle v. State, 119 S.W.3d 808 (Tex. Crim. App. 2003). The trial court signed a certification that this "is not a plea bargain case, and the defendant has the right of appeal." (1)

In Shankle, the Texas Court of Criminal Appeals discussed the differences between charge-bargaining and sentence-bargaining and held Rule 25.2 limits a court of appeals' jurisdiction over a charge-bargaining plea agreement. Shankle, 119 S.W.3d at 813-14. "Rule 25.2(a)(2) provides that a defendant may appeal only matters that were raised by written motion filed and ruled on before trial or after getting the trial court's permission to appeal." Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006); see Tex. R. App. P. 25.2. A charge-bargaining plea agreement occurs when a defendant agrees to plead guilty to the offense that has been alleged or to a lesser or related offense, and the State agrees to dismiss, or refrain from bringing, other charges. Shankle, 119 S.W.3d at 813. The court reasoned "[a]n agreement to dismiss a pending charge . . . effectively puts a cap on punishment at the maximum sentence for the charge that is not dismissed" and, thus, a charge-bargaining affects punishment. Id. As such, Rule 25.2 prohibits a party from challenging the punishment assessed. Id. at 814. We are obliged to follow the precedent of the Texas Court of Criminal Appeals.

Epps pled guilty pursuant to a charge-bargaining plea agreement. Because Epps is not appealing matters raised in pretrial motions, we lack jurisdiction over this appeal. Accordingly, we dismiss this appeal for want of jurisdiction.

 

Jack Carter

Justice

 

Date Submitted: December 10, 2007

Date Decided: December 11, 2007

 

Do Not Publish

1. The trial court's certification must be true and supported by the record. Saldana v. State, 161 S.W.3d 763, 764 (Tex. App.--Beaumont 2005, no pet.); see Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005). Here, the trial court did not grant permission to appeal. The form used by the trial courts to certify a right of appeal has several alternatives. One of those is that the case involves a plea bargain, but the trial court has given permission to appeal. The trial court did not make such a finding, but considered that no plea bargain existed and therefore the defendant had a right of appeal.