Troy Edward Hines v. State ( 2011 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-11-00058-CR
NO. 03-11-00092-CR
Troy Edward Hines, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF FAYETTE COUNTY, 155TH JUDICIAL DISTRICT
NOS. 2010R-078 & 2010R-079, HONORABLE DAN R. BECK, JUDGE PRESIDING
MEMORANDUM OPINION
Troy Edward Hines seeks to appeal judgments of conviction for indecency with a
child and sexual assault of a child. See Tex. Penal Code Ann. §§ 21.11, 22.011 (West 2011). We
dismiss the appeals for want of jurisdiction.
On June 24, 2010, appellant was indicted in cause number 2010R-078 for one count
of indecency with a child by contact and in cause number 2010R-079 for two counts of sexual assault
of a child, one count of indecency with a child by contact, and two counts of indecency with a child
by exposure. On December 8, 2010, appellant appeared in the district court and entered pleas of
guilty to the indecency by contact alleged in cause number 2010R-078 and to the sexual assault,
indecency by contact, and indecency by exposure alleged in counts one, three, and four of
cause number 2010R-079. In exchange for these guilty pleas, the State agreed to abandon the
two remaining counts in cause number 2010R-079 and to recommend a cap of twelve years’
imprisonment. On December 28, 2010, after hearing testimony and receiving other evidence
relevant to punishment, the district court assessed punishment at seven years’ imprisonment for each
offense, to run concurrently.
If a defendant pleads guilty and the punishment assessed does not exceed that
recommended by the prosecutor and agreed to by the defendant, the defendant must have the trial
court’s permission to appeal except as to those matters that were raised by written motion filed and
ruled on before trial. Tex. R. App. P. 25.2(a)(2). An agreement to cap punishment at a certain
number of years, below which the trial court may exercise its discretion, is a punishment agreement
within the meaning of this rule. Threadgill v. State, 120 S.W.3d 871, 872 (Tex. App.—Houston [1st
Dist.] 2003, no pet.); Delatorre v. State, 957 S.W.2d 145, 148-49 (Tex. App.—Austin 1997, pet.
ref’d). Because the punishment assessed in these causes does not exceed the cap agreed to by
appellant, his right of appeal is limited by rule 25.2.
Appellant’s sole contention on appeal is that the State suggested by its questions at
the punishment hearing that appellant had committed extraneous offenses, but the State failed to
prove those offenses beyond a reasonable doubt. See Tex. Code Crim. Proc. Ann. art. 37.07,
§ 3(a)(1) (West Supp. 2010). Under rule 25.2, this is not a matter that appellant may appeal without
the trial court’s permission. The record does not contain a certification showing that the trial court
gave its permission to appeal. Absent this certification, the appeals must be dismissed. Tex. R.
App. P. 25.2(d).
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The appeals are dismissed.
__________________________________________
J. Woodfin Jones, Chief Justice
Before Chief Justice Jones, Justices Pemberton and Henson
Dismissed for Want of Jurisdiction
Filed: August 11, 2011
Do Not Publish
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