Daniel Hernandez v. State ( 2018 )

Dismissed and Memorandum Opinion filed October 2, 2018.
In The
Fourteenth Court of Appeals
NO. 14-18-00552-CR
NO. 14-18-00553-CR
DANIEL HERNANDEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court
Harris County, Texas
Trial Court Cause Nos. 1514852 & 1514853
MEMORANDUM OPINION
Appellant was indicted for two counts of indecency with a child by contact.
Pursuant to a charge bargain, the State agreed to reduce the charges in exchange for
appellant’s guilty pleas to two counts of indecency with a child by exposure. The
trial court placed appellant on deferred-adjudication community supervision for
eight years in each case with the sentences to run concurrently. We dismiss the
appeals.
Because this is a charge-bargain case, appellant has the right to appeal under
Texas Rule of Appellate Procedure 25.2(a)(2) only: (A) those matters that were
raised by written motion filed and ruled on before trial, or (B) after receiving the
trial court’s permission to appeal. Kennedy v. State, 297 S.W.3d 338, 340–41 (Tex.
Crim. App. 2009); see also Shankle v. State, 119 S.W.3d 808, 812–13 (Tex. Crim.
App. 2003) (holding that charge bargain that “effectively puts a cap on punishment”
is a bargain governed by rule of appellate procedure 25.2(a)(2)). The record does not
reflect the trial court’s permission to appeal or any pretrial motions that could be
appealed.
In cause number 14-18-00553-CR, the trial court entered a certification of the
defendant’s right to appeal in which the court certified that this is a plea-bargain
case, and the defendant has no right of appeal. See Tex. R. App. P. 25.2(a)(2). The
trial court’s certification is included in the record on appeal. See Tex. R. App. P.
25.2(d). The record supports the trial court’s certification. See Dears v. State, 154
S.W.3d 610, 615 (Tex. Crim. App. 2005).
In cause number 14-18-00552-CR. the trial court erroneously 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.On August 10,
2018, this court sent notice to the trial court requesting a corrected certification of
appellant’s right to appeal in cause number 14-18-00552-CR. No corrected
certification has been filed.
Despite the incorrect certification, we do not have jurisdiction of appellant’s
appeal. See Waters v. State, 124 S.W.3d 825, 826–27 (Tex. App.—Houston [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).
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Accordingly, we dismiss both appeals.
PER CURIAM
Panel consists of Chief Justice Frost and Justices Boyce and Busby.
Do Not Publish — Tex. R. App. P. 47.2(b).
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