Opinion issued January 10, 2013




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-12-00689-CR
                           ———————————
                  DAMON RAYNORD NOBLES, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 351st District Court
                           Harris County, Texas
                       Trial Court Cause No. 1309403


                         MEMORANDUM OPINION

      Appellant Damon Raynord Nobles pleaded guilty, pursuant to an agreement

with the State that punishment be capped at confinement for 25 years, to the felony

offense of theft from an elderly person of property valued at $20,000 to $100,000.

See TEX. PENAL CODE ANN. § 31.03 (West Supp. 2012). The trial court found
appellant guilty and, in accordance with appellant’s plea agreement with the State,

assessed punishment at confinement for 25 years. The trial court certified that this

is a plea-bargain case and that appellant does not have the right of appeal.

Nevertheless, appellant, proceeding pro se, filed a notice of appeal. We dismiss

the appeal for lack of jurisdiction.

      A plea bargain case is one 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.” TEX. R. APP. P. 25.2(a)(2). 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. Id. The 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).

      The clerk’s record reflects that appellant pleaded guilty in exchange for the

State’s recommendation that punishment be capped at confinement for 25 years.

An agreement to a recommended cap on punishment constitutes a plea bargain.

See Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003); Wilson v.

State, 264 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Waters

v. State, 124 S.W.3d 825, 826–27 (Tex. App.—Houston [14th Dist.] 2003, pet.

ref’d). The record of the plea hearing reflects that the trial court so admonished


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appellant and that appellant understood that he would not have the right of appeal.

The trial court assessed punishment at confinement for 25 years, in accordance

with appellant’s agreement with the State.1 Further, appellant’s counsel has filed a

letter stating that, based on the plea bargain in this case, the Court is without

jurisdiction to hear this appeal. We conclude that the record supports the trial

court’s certification. See TEX. R. APP. P. 25.2; Dears v. State, 154 S.W.3d 610,

615 (Tex. Crim. App. 2005).

      The trial court did not rule adversely to appellant on any pre-trial matters

and did not give permission for appellant to appeal. See TEX. R. APP. P. 25.2(a)(2).

Because appellant has no right of appeal, we must dismiss the appeal. See TEX. R.

APP. P. 25.2(d); 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 the appeal for lack of jurisdiction. See TEX. R.

APP. P. 43.2(f). We dismiss any pending motions as moot.


1
      The trial court’s judgment states, “Term of Plea Bargain: Without an Agreed
      Recommendation.” Such language does not convert the plea to an open plea when,
      as here, the plea was entered pursuant to agreed sentencing cap. See Threadgill v.
      State, 120 S.W.3d 871, 872 (Tex. App.—Houston [1st Dist.] 2003, no pet.)
      (holding statement in record indicating that there was no agreed recommendation
      did not convert proceeding into open plea when plea was entered pursuant to
      agreed sentencing cap).

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                                PER CURIAM

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

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




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