Mario Gill Castillo v. The State of Texas--Appeal from 230th District Court of Harris County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-03-00074-CR
______________________________
MARIO GILL CASTILLO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th Judicial District Court
Harris County, Texas
Trial Court No. 682930
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Ross
MEMORANDUM OPINION

Mario Gill Castillo appeals from the revocation of his community supervision for a third offense driving while intoxicated conviction. Castillo pled true to the allegations and was sentenced to two years' imprisonment and a $1,000.00 fine in accordance with a plea agreement. Castillo filed a notice of appeal pro se.

Effective January 1, 2003, the Texas Rules of Appellate Procedure were amended. Castillo's notice of appeal invoking appellate jurisdiction was filed after the effective date of the amended rules. The amended rules therefore apply to this appeal. Rule 25.2(a) was amended to read, in pertinent part:

(2) . . . 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 a defendant's plea is 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). The trial court filed a certification of Castillo's right of appeal in accordance with Rule 25.2(a)(2). It states that this "is a plea-bargain case, and the defendant has NO right of appeal."

The written admonishments initialed by Castillo reflect he entered into a plea agreement with the State as to the punishment to be recommended on the revocation of his community supervision. It further contains language stating he agreed to waive any right of appeal if the plea recommendation was accepted by the court.

We have jurisdiction to determine whether we have jurisdiction. Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996). Castillo entered into a plea agreement that the trial court did not exceed at sentencing. Under amended Rule 25.2(a)(2), Castillo was entitled to appeal only "those matters that were raised by written motion filed and ruled on before trial," or "after getting the trial court's permission to appeal." The trial court certified that neither of these circumstances apply by stating that there is no right of appeal. See Comb v. State, No. 01-03-00037-CR, 2003 Tex. App. LEXIS 2241 (Tex. App.-Houston [1st Dist.] Mar. 13, 2003, no pet. h.). (1)

We hold that we lack jurisdiction over this appeal. We dismiss the appeal.

 

Donald R. Ross

Justice

 

Date Submitted: April 29, 2003

Date Decided: April 30, 2003

 

Do Not Publish

1. A plea agreement by its nature incorporates a voluntary and understanding plea of guilty, and thus its process can only be triggered when the plea agreement and guilty plea are voluntarily and understandably made; however, in Cooper, the Texas Court of Criminal Appeals determined that an involuntary plea may be raised by a motion for new trial and habeas corpus, but not on appeal. Cooper v. State, 45 S.W.3d 77 (Tex. Crim. App. 2001).