Brad Leon Threadgill v. The State of Texas--Appeal from 248th District Court of Harris County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

BRAD LEON TREADGILL, )

) No. 08-04-00188-CR

Appellant, )

) Appeal from the

v. )

) 248th District Court

THE STATE OF TEXAS, )

) of Harris County, Texas

Appellee. )

) (TC# 965585)

)

MEMORANDUM OPINION

Appellant Brad Leon Threadgill attempts to appeal a conviction for driving while intoxicated, third degree felony. Appellant plead guilty to the offense, and in accordance with his plea agreement, the trial court sentenced Appellant to 15 years= imprisonment in the Institutional Division of the Texas Department of Criminal Justice. Finding that Appellant has no right of appeal, we dismiss the appeal.

Rule 25.2(a)(2) governs the defendant=s right to appeal in a criminal case:

A defendant in a criminal case has the right of appeal under Code of Criminal Procedure article 44.02 and these rules. The trial court shall enter a certification of the defendant=s right of appeal in every case in which it enters a judgment of guilt or other appealable order. In a plea bargain case--that is, a case in which defendant=s plea of guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant--a defendant may appeal only:

(A) those matters that were raised by written motion filed and ruled on before trial, or

(B) after getting the trial court=s permission to appeal.

Tex.R.App.P. 25.2(a)(2).

Article 44.02 of the Texas Code of Criminal Procedure provides:

A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed, provided, however, before the defendant who has been convicted upon either his plea of guilty or plea of nolo contendere before the court and the court, upon the election of the defendant, assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney may prosecute his appeal, he must have permission of the trial court, except on those matters which have been raised by written motion filed prior to trial. This article in no way affects appeals pursuant to Article 44.17 of this chapter.

Tex.Code Crim.Proc.Ann. art. 44.02 (Vernon 1979).

Appellant timely filed his pro se notice of appeal. On July 20, 2004, this clerk=s office notified Appellant that the trial court has indicated in the court=s certification that this is a

plea-bargain case and Appellant has no right of appeal in this case and requested a response. By letter brief dated July 28, 2004, Appellant urges to the Court that he should be entitled to an appeal because he was denied his right to counsel, his plea was involuntary, and the punishment was harsher than that recommended in the plea bargain.

The clerk=s record contains Appellant=s guilty plea, which was signed by Appellant, Appellant=s trial counsel, the State prosecutor, and the trial judge. The recommended punishment was 15 years= imprisonment. The trial judge admonished Appellant in writing and Appellant initialed the admonitions. All parties signed the plea admonishments document. The trial court imposed a punishment of fifteen years= imprisonment in the Institutional Division, Texas Department of Criminal Justice. It appears that Appellant was represented by counsel when he plead guilty and at the sentencing. Appellant may not raise on direct appeal from a felony conviction the voluntariness of his guilty plea. See Cooper v. State, 45 S.W.3d 77, 83 (Tex.Crim.App. 2001). The punishment imposed did not exceed the punishment recommended by the State prosecutor and agreed to by Appellant. The trial court certified that this is a

plea-bargain case and the defendant has no right of appeal. The judgment indicates that Appellant waived appeal and no permission to appeal was granted. After reviewing the clerk=s record, we conclude that it supports the trial court=s certification. Because Appellant did not receive the trial court=s permission to appeal, Appellant has no right of appeal. Accordingly, the appeal is dismissed.

September 16, 2004

DAVID WELLINGTON CHEW, Justice

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.

(Do Not Publish)