Cory D. Marks v. The State of Texas--Appeal from 402nd Judicial District Court of Wood County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-03-00053-CR
______________________________
CORY DEAN MARKS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 402nd Judicial District Court
Wood County, Texas
Trial Court No. 17,493-2002
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION

Cory Dean Marks has filed an appeal from his conviction on his plea of guilty pursuant to a negotiated plea agreement for the offense of criminal mischief. Effective January 1, 2003, the Texas Rules of Appellate Procedure were amended. Marks' 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 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)(2).

The trial court filed a certification of defendant'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 reflect that Marks entered into a negotiated plea agreement and contain language informing him that, if the punishment did not exceed the agreed recommendation, he did not have the right to appeal without permission of the court except for matters raised by written motions filed before trial.

We have jurisdiction to determine whether we have jurisdiction. Olivo v. State, 918 S.W.2d 519, 522-23 (Tex. Crim. App. 1996). Marks entered into a negotiated plea agreement that the trial court did not exceed at sentencing. Under amended Rule 25.2(a)(2), Marks 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 WL 1090438 (Tex. App.-Houston [1st Dist.] Mar. 13, 2003, no pet. h.).

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

 

Jack Carter

Justice

 

Date Submitted: April 30, 2003

Date Decided: May 1, 2003

 

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