Felipe D. Martinez v. The State of Texas--Appeal from 241st District Court of Smith County

NO. 12-05-00110-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

FELIPE D. MARTINEZ, APPEAL FROM THE 241ST

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

PER CURIAM

Appellant Felipe D. Martinez attempts to appeal an order denying his motion for new trial. We dismiss for want of jurisdiction.

Background

On April 26, 2000, Appellant pleaded guilty to aggravated assault with a deadly weapon, pursuant to a plea agreement. The trial court followed the agreement, deferred a finding of guilt, and placed Appellant on community supervision for ten years. On November 29, 2004, after finding that Appellant had violated his community supervision terms, the trial court adjudicated him guilty and made a deadly weapon finding. On December 13, 2004, the trial court assessed his punishment at imprisonment for 18 years and a five thousand dollar fine.

On January 12, 2005, Appellant filed a motion for new trial raising claims relating to the original plea proceeding, which had occurred approximately five years earlier. After a hearing, the trial court denied the motion for new trial. Appellant filed a motion requesting permission to appeal all issues raised in his motion for new trial and/or litigated at the hearing. The trial court denied the motion. We have received the trial court s certification stating that Appellant has no right of appeal and that the trial court denied permission to appeal.

On May 9, 2005, this Court notified Appellant that the trial court certification shows he has no right of appeal. Appellant was also informed that failure to show this Court s jurisdiction on or before May 24, 2005 would result in the appeal being referred to the Court for dismissal. In response, Appellant urged this Court to conclude that it has jurisdiction of the appeal, but cited no authority precisely on point.

Discussion

A plea-bargaining defendant may appeal only those matters relating to motions filed and ruled on before trial and those matters the trial court gives him permission to appeal. See Tex. R. App. P. 25.2(a)(2). As a general rule, the defendant must raise issues relating to the original plea proceeding in appeals taken when deferred adjudication community supervision is first imposed. Manuel v. State, 994 S.W.2d 658, 661 (Tex. 1999); see also Nix v. State, 65 S.W.3d 664, 667 (Tex. Crim. App. 2001). Moreover, a motion for new trial is not available as a remedy for a defendant who receives deferred adjudication. Donovan v. State, 68 S.W.3d 633, 635 (Tex. Crim. App. 2002).

Here, the trial court certified that this is a plea-bargain case when placed on deferred and the defendant has no right of appeal. The trial court further certified that the defendant waived appeal at the time he was sentenced to probation and court denied right to appeal. We have also been furnished a certified copy of the order denying permission for Appellant to appeal the trial court s order denying his motion for new trial.

The materials submitted in this appeal confirm that this is a plea-bargain case, the trial court assessed punishment in accordance with the plea agreement, and that the trial court denied permission to appeal the order Appellant seeks to challenge. Consequently, we conclude that the trial court s certification that Appellant does not have the right of appeal is correct. Accordingly, we dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 25.2(a)(2).

Opinion delivered May 31, 2005.

Panel consisted of Worthen, C.J. and Griffith, J.

DeVasto, J., not participating.

(DO NOT PUBLISH)