Fidel Hernandez-Gonzalez v. State

Opinion issued July 12, 2012.

In The

Court of Appeals

For The

First District of Texas

NO. 01-12-00319-CR

____________

FIDEL HERNANDEZ-GONZALEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 1312124

MEMORANDUM OPINION

Appellant, Fidel Hernandez-Gonzalez, pleaded guilty to the felony offense of

aggravated sexual assault of a child. The trial court found appellant guilty and, in

accordance with the terms of appellant’s plea agreement with the State, sentenced

appellant to confinement for nine years in the Institutional Division of the Texas

Department of Criminal Justice. Appellant has filed a pro se notice of appeal. We

dismiss the appeal.

In a plea bargain case, a defendant may appeal only 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. 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).

Here, the trial court’s certification is included in the record on appeal. See id.

The trial court’s certification states that this is a plea-bargain case and that the

appellant has no right of appeal.1 See TEX. R. APP. P. 25.2(a)(2). The record

supports the trial court’s certification. See Dears v. State, 154 S.W.3d 610, 615

(Tex. Crim. App. 2005). 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

1

Appellant’s notice of appeal indicates that appellant wishes to challenge the

voluntariness of his guilty plea with a claim of ineffective assistance of counsel.

Appellant cannot, however, raise the voluntariness of his plea or a claim of

ineffective assistance of counsel on direct appeal, absent the trial court's

permission. See Cooper v. State, 45 S.W.3d 77, 81 (Tex. Crim. App. 2001)

(holding that voluntariness of guilty plea may not be raised on appeal from plea-

bargained felony conviction); Estrada v. State, 149 S.W.3d 280, 283 (Tex. App.—

Houston [1st Dist.] 2004, pet. ref’d) (concluding that claim of ineffective assistance

of counsel may not be raised in appeal from plea-bargained case, unless authorized

by trial court).

2

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 the appeal for want of jurisdiction. We dismiss all

pending motions as moot.

PER CURIAM

Panel consists of Justices Bland, Massengale, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).

3