Sherman Kermit Philips v. State ( 2010 )

Opinion issued July 29, 2010

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-00047-CR

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SHERMAN KERMIT PHILLIPS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Case No. 1193813

MEMORANDUM OPINION

          Pursuant to a plea-bargain agreement with the State, appellant, Sherman Kermit Phillips, pleaded guilty to the offense of possession with intent to deliver a controlled substance, namely, cocaine weighing more than 4 grams and less than 200 grams.[1]  The trial court followed the plea agreement and sentenced appellant to 15 years in prison.  The trial court signed a “Certification of Defendant’s Right of Appeal” in which it indicated that appellant had no right of appeal because this is a plea-bargained case.  See Tex. R. App. P. 25.2(a)(2).

          Less than 30 days later, appellant filed a pro se motion to withdraw his plea.  Appellant asserted that his plea had been involuntary because he suffers from mental illness, was without his medication, and had misunderstood the plea agreement.  The trial court denied the motion.  Several days later, appellant filed a notice of appeal. 

          On appeal, the State contends that this Court lacks jurisdiction over the appeal. We agree. 

          In a plea bargain case—that is, a case in which a defendant’s plea was 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 and ruled on before trial; or

(B) after getting the trial court’s permission to appeal.

Tex. R. App. P. 25.2(a)(2)(A), (B).  The Court of Criminal Appeals has held that the voluntariness of a guilty plea may not be raised on appeal following a plea bargain agreement.  See Cooper v. State, 45 S.W.3d 77, 81, 83 (Tex. Crim. App. 2001).  The Court indicated that the proper avenue for attacking the voluntariness of a negotiated plea is by application for writ of habeas corpus.  See id. at 82–83.

In this case, the record reflects that appellant pleaded guilty to the charged offense.  It further reflects that the trial court assessed the punishment recommended by the State and to which appellant had agreed.  See Tex. R. App. P. 25.2(a)(2).  Appellant does not complain about the trial court’s ruling on a pretrial motion, nor does he have the trial court’s permission to appeal.  See id.  Instead, although phrased in terms of the trial court’s denial of his motion to withdraw his plea, and its failure to hold a hearing on the motion, the basis of appellant’s appeal is his claim that his guilty plea was involuntary.  A voluntariness-of-a-plea challenge may not be brought on direct appeal from a plea-bargained felony conviction.  See Cooper, 45 S.W.3d at 81, 83.  Therefore, we conclude that we lack jurisdiction over the appeal.

We dismiss the appeal for lack of jurisdiction.

PER CURIAM

Panel consists of Justices Keyes, Higley, and Hanks.

Do not publish.   Tex. R. App. P. 47.2(b).

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[1]           See Tex. Health & Safety Code Ann. §§ 481.102(3)(D), 481.112(d) (Vernon 2010).