Sergio Arturo Candanoza v. The State of Texas--Appeal from 174th District Court of Harris County

Dismissed and Memorandum Opinion filed August 24, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-06-00145-CR

NO. 14-06-00146-CR

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SERGIO ARTURO CANDANOZA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause Nos. 1014187 & 1014188

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

Appellant entered pleas of no contest to aggravated sexual assault and aggravated kidnapping. In each case, appellant and the State agreed that appellant=s punishment would not exceed confinement in prison for more than sixty years. In accordance with the terms of this agreement with the State, the trial court sentenced appellant on January 25, 2006, to confinement for sixty years in the Institutional Division of the Texas Department of Criminal Justice in each case, with the sentences to be served concurrently. Appellant filed a timely, written notice of appeal in each case. We dismiss the appeals.

Although the trial court mistakenly entered a certification of the defendant=s right to appeal in which the court certified that each is not a plea bargain case and the defendant has the right of appeal, we have no jurisdiction over the appeals. 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.CHouston [14th Dist.] 2003, pet. ref=d) (holding reviewing court lacked jurisdiction where defendant pled guilty with a sentencing cap of ten years, even thought trial judge mistakenly certified defendant had right of appeal); Threadgill v. State, 120 S.W.3d 871, 872 (Tex. App.CHouston [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 Acap@ on sentencing).

Because appellant=s pleas were made pursuant to a plea bargain, he may appeal only matters raised by a written pre-trial motion or with the trial court=s permission. See Tex. R. App. P. 25.2(a)(2). Appellant is not appealing any pre-trial rulings.[1] The trial court=s erroneous certification that the cases are not plea bargain cases does not constitute permission to appeal. See Waters, 124 S.W.3dat 826-27.

Accordingly, we dismiss the appeals.

PER CURIAM

Judgment rendered and Memorandum Opinion filed August 24, 2006.

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

Do Not Publish C Tex.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

[1] Appellant has filed his brief in which he raises only constitutional complaints concerning his sentencing.