## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 16

- 00225

- CR

CHARLES JOSEPH BANDY, Appellant

V. THE STATE OF TEXAS, Appellee

On Appeal from the 354th District Court

Hunt County, Texas Trial Court No. 30,872

Before Morriss, C.J., Moseley and Burgess, JJ. Memorandum Opinion by Justice Burgess2 

### MEMORANDUM OPINION Charles Joseph Bandy was indicted on t wo counts of sexual assault of a child, both second

d egree - felony offenses. See T EX
. P ENAL C ODE A NN
. § 2 2 .0 1 1(f) (West Supp. 2017). He pled guilty to, and was convicted of, one count of the lesser

- included offense of indecency with a child. The trial cour t sentenced Bandy to seven year s ’ imprisonment. In his sole point of error on appeal, Bandy argues that the trial court erred in accepting his plea because it was not freely and voluntarily made. Because we are without jurisdiction to address this i ssue , we must dismiss Bandy’s appeal

. The record reflects that (1) Bandy was indicted on two counts of sexual assault of a child, both second

- degree

- felony offenses; (2) Bandy and the State executed a document titled “Agreed Punishment Recommendation” in which the State agreed to prosecute Bandy for only one count of the lesser

- included offense of indecency with a child, also a second

- degree felony; 1 (3) the State dismissed the second count alleging sexual assault of a child; and (4) Bandy simultaneously

e xecuted a waiver of the right to appeal the issue of guilt/innocence. 2 Thus, the State and Bandy
enter ed into a charge bargain, which “involves questions of whether a defendant will plead guilty to the offense that has been alleged or to a lesser or relat ed offense, and of whether the prosecutor will dismiss, or refrain from bringing, other charges.” Shankle v. State , 119 S.W.3d 808, 813 (Tex. Crim. App. 2003).

1 See T EX
. P ENAL C ODE A NN
. § 21.11(d) (West Supp. 2017).

2 The Texas Court of Criminal Appeals held that a presentence waiver of the right to appeal is proper when the State has given adequate consideration for the waiver. Ex parte Broadway , 301 S.W.3d 694, 697

– 98 (Tex. Crim. App. 2009).3

Under the Court of Criminal Appeals’ reasoning in Shankle and its progeny, “charge

bargainin g affects punishment . . . [and] effectively puts a cap on punishment at the maximum sentence for the charge that is not dismissed.” Id. Accordingly, the charge bargain constitutes a plea agreement for purposes of Rule 25.2(a)(2). See id. ; Kennedy v. St ate , 297 S.W.3d 338, 339 (Tex. Crim. App. 2009). The Texas Legislature has granted a very limited right of appeal in plea bargain cases. Rule 25.2(a)(2) of the Texas Rules of Appellate Procedure details that right as follows: (2) . . . . 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 r aised by written motion filed and ruled on before trial, or (B) after getting the trial court’s permission to appeal.
T EX
. R. A PP
. P. 25.2(a)(2). The trial court’ s certification of right of appeal filed in this matter shows that this was a plea bargain case in which Bandy had the right to appeal matters affecting punishment only. The notice of appeal also states that Bandy wishes to appeal from his sentence. However, the sole point of error on appeal is related only to guilt/innocence. Because the tr ial court’s certification does not grant Bandy the right to appeal matters un related to punishment, we are without jurisdiction over the sole point of error raised by Bandy on appeal.4

Accordingly, we dismiss this appeal for want of jurisdiction.

Ralph K. Burgess Justice Date Submitted: October 16, 2017 Date Decided: December 6, 2017 Do Not Publish