Melissa Luera v. State ( 2018 )

Opinion issued August 31, 2018
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00686-CR
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MELISSA LUERA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 228th District Court
Harris County, Texas
Trial Court Cause No. 1583162
MEMORANDUM OPINION
Appellant, Melissa Luera, pleaded guilty to the third-degree felony offense of
driving while intoxicated—third offense, with an agreed punishment
recommendation of ten years’ confinement probated for four years, with ten days’
confinement in county jail.1 In accordance with her plea bargain with the State, the
trial court found appellant guilty and assessed her punishment at ten years’
confinement probated for four years, with ten days’ confinement in county jail on
June 26, 2018.2 The trial court certified that this was a plea-bargained case and that
appellant had no right of appeal. See TEX. R. APP. P. 25.2(a)(2). Appellant timely
filed a pro se notice of appeal and was appointed counsel.3 See TEX. R. APP. P.
26.2(a)(1). We dismiss this appeal for want of jurisdiction.
In a plea-bargain case, a defendant may only appeal those matters that were
raised by written motion filed and ruled on before trial or after getting the trial court’s
permission to appeal. TEX. CODE CRIM. PROC. ANN. art. 44.02 (West 2006); TEX. R.
APP. P. 25.2(a)(2). An appeal must be dismissed if a certification showing that the
defendant has the right of appeal has not been made part of the record. TEX. R. APP.
P. 25.2(d); see Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005).
Here, the trial court’s certification stated that this was a plea-bargained case
and that appellant had no right of appeal, and the trial court did not give its
1
See TEX. PENAL CODE ANN. §§ 49.04(a), 49.09(b)(2) (West 2011).
2
See TEX. PENAL CODE ANN. § 12.34(a) (West 2011).
3
On August 2, 2018, the trial court signed a judgment nunc pro tunc correcting the
judgment to the extent that appellant’s pleas to the first and second enhancement
paragraphs were incorrectly marked true when they should have been marked as not
applicable.
2
permission to appeal any matters. See TEX. R. APP. P. 25.2(a)(2), (d); Dears, 154
S.W.3d at 615. The clerk’s record, filed in this Court including the plea waiver,
supports the trial court’s certification. See Dears, 154 S.W.3d at 615. Because
appellant has no right of appeal, we must dismiss this appeal. See Chavez v. State,
183 S.W.3d 675, 680 (Tex. Crim. App. 2006) (“A court of appeals, while having
jurisdiction to ascertain whether an appellant who plea-bargained is permitted to
appeal by Rule 25.2(a)(2), must dismiss a prohibited appeal without further action,
regardless of the basis for the appeal.”).
Accordingly, we dismiss this appeal for want of jurisdiction. See TEX. R. APP.
P. 43.2(f).
PER CURIAM
Panel consists of Justices Jennings, Higley, and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
3