Edward Michael Pena v. The State of Texas--Appeal from 339th District Court of Harris County

Dismissed and Memorandum Opinion filed August 16, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-07-00075-CR

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EDWARD MICHAEL PENA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 1069431

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

Appellant entered a plea of guilty to aggravated sexual assault of a child. Appellant and the State agreed that appellant=s punishment would not exceed confinement in prison for more than twenty-five years. In accordance with the terms of this agreement with the State, the trial court sentenced appellant on January 4, 2007, to confinement for fifteen 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.CHouston [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.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 plea was 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). The record does not contain any pre-trial rulings. 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.3dat 826-27.

Accordingly, we dismiss the appeal.

PER CURIAM

Judgment rendered and Memorandum Opinion filed August 16, 2007.

Panel consists of Chief Justice Hedges, Justices Yates and Frost.

Do Not Publish C Tex.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