Criteria Niclole Holmes v. State ( 2010 )

Opinion issued September 16, 2010

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-00385-CR

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CRITERIA NICLOLE HOLMES, Appellant

V.

The State of Texas, Appellee

On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Cause No. 1214871

MEMORANDUM OPINION

Appellant, Criteria Niclole Holmes, pleaded guilty to the offense of aggravated robbery with an agreement from the State that her punishment would not exceed confinement for 40 years.  Along with the plea of guilty in trial court cause number 1214871, appellant, appellant=s counsel, and the State signed a stipulation of evidence which included, among others, the following statements: AI intend to enter a plea of guilty and the prosecutor will recommend that my punishment should be set ‘without an agreed recommendation with a cap of 40 years TDC.’@ Appellant also acknowledged in court the court’s admonishment of “You are giving up your right of appeal,” and the plea admonishments further reflect her representation to the court of “I waive my right of appeal.”

 In accordance with appellant=s plea bargain agreement with the State to cap punishment at confinement for 40 years in trial court cause number 1214871, the trial court sentenced appellant to confinement for thirty five years, a punishment that fell within the agreed punishment cap. 

Appellant did not request the trial court=s permission to appeal any pre-trial matters, and the trial court did not give appellant permission to appeal.  Appellant filed a timely pro se notice of appeal.  

In a plea-bargain case in which the punishment assessed does not exceed the plea agreement, a defendant may appeal only those matters that were raised by written motion filed and ruled on before trial, or after obtaining the trial court=s permission to appeal. Tex. R. App. P. 25.2(a)(2); see Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006) (holding that agreement to punishment cap is plea bargain for purposes of Rule 25.2;  Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003) (same).

The trial court=s certification of appellant=s right to appeal states that the defendant has waived the right of appeal, and the certification is supported by the record.  Because appellant has waived her appeal, we must dismiss this appeal “without further action.”  See Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006).

          Accordingly, this appeal is dismissed for lack of jurisdiction.

          We deny any pending motions as moot.

PER CURIAM

Panel consists of Chief Justice Radack, and Justices Hanks and Massengale.

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