DISMISS; Opinion Filed November 24, 2014.

In The 

## Court of Appeals **Fifth District of Texas at Dallas**
No. 05
- 1 4
- 0 00 20
- CR No. 05
- 14
- 00021
- CR
JOVANY ALBA , Appellant
V. THE STATE OF TEXAS , Appellee On Appeal from the 204th Judicial Distri ct Court Dalla s County, Texas Trial Court Cause No s . F 13
- 51275
- Q, F13
- 51192
- Q 

### MEMORANDUM OPINION
Before Justices Francis, Evans, and Stoddart Opinion b y Justice Evans Jovany Alba waived a jury and pleaded guilty to aggravated assault with a deadly weapon and unlawful possession of a firearm by a felon. See T EX
. P ENAL C ODE A NN
. § § 22.02(a)(2), 46.04(a) (West 2011). In the aggravated assault case, a ppellant also pleaded true to one enhancement paragraph alleging a prior felony conviction. At the plea hearing, the pro secutor and appellant agreed to cap the punishment in each case at ten years . The trial court found appellant guilty and the enhancement paragraph true and assessed punishment at ten years’- 2

- imprisonment in each case. 1 On appeal, appellant’s attorney file d a brief in which s he concludes the appeal s are wholly frivolous and without merit. See Anders v. California , 386 U.S. 738 (1967). We advised appellant of his right to file a pro se response, but he did not file a pro se
response. See Kelly v. State , 4 36 S.W.3d 313, 219

– 21 (Tex. Crim. App. 2014) (identifying duties of appellate courts and counsel in Anders cases )

. Initially, counsel questioned the Court ’s jurisdiction over the appeals because appellant pleaded guilty and was sentenced in accordance wi th plea agreement s . Additionally, after sentencing appellant, the trial court specifically admonished appellant that he had no right to appeal. Nevertheless, the certifications state the cases d o not involve plea agreements. C ounsel point ed out this di screpancy between the trial court’s certification s of appellant’s right to appeal and the record. See Dears v. State , 154 S.W.3d 610 (Tex. Crim. App. 2005). We agree we lack jurisdiction over the appeals. In plea bargain case s , we review the record to de termine our jurisdiction and whether the trial court’s certification is correct. See id. at 612

– 13. An agreement to a punishment cap is a plea agreement within the meaning of r ule 25.2 of the Texas Rules of Appellate Procedure. See
T EX
. R. A PP
. P. 25.2 ( a)(2); Shankle v. State , 119 S.W.3d 808, 813 (Tex. Crim. App. 2003); Threadgill v. State , 120 S.W.3d 871, 872 (Tex. App.

— Houston [1st Dist.] 2003, no pet.)

. Here,
t he trial court ’s certifi cation s state the cases are not plea

- bargain case s , and the defenda nt has the right of appeal. T he record , however, shows plea agreement s that capped the punishment in each

case at ten years ’ imprisonment . The trial court assessed punishment in accordance with the cap and specifically told appellant he did not have a ri ght to appeal because “I followed the plea

1 We note the trial court’s judgment on the aggravated assault case says “n/a” in the sections regarding the plea and finding o n the enhancement paragraph, which contradicts the record of the pl ea proceedings. Because of our disposition of the appeal, we cannot modify the judgment to correct the error.- 3

- bargain agreement and didn’t give you more than ten.” Thus, the certification s do not accurately reflect the trial court proceedings. See Dears , 154 S.W.3d at 614

– 15. 2 Rather than raise the jurisdictional issue for the first time in an Anders brief, the better practice would be for counsel to file a moti on asking that the Court review the jurisdictional issue before briefs are filed. Nevertheless, we agree with counsel that we lack jurisdiction over the appeals

. We dismiss the appeals for want of jurisdiction. / David Evans/ DAVID EVANS JUSTICE Do Not Publish T EX
. R. A PP
. P. 47 140020F.U05

2 Had counsel filed a brief raising issues on the merits, we would abate the case to allow the trial court to file an amended c ertification that showed either no right to appeal or provided the basis for the right to appeal. See Cortez v. State , 420 S.W.3d 803 (Tex. Crim. App. 2013); Dears , 154 S.W.3d at 614

– 15. However, b ecause appellant’s counsel raises the jurisdictional issue in these cases and filed a brief saying the appeals are frivolous, and because the record clearly shows the trial court did not give appellant permission to appeal, we s ee no reason to take that additional step here.- 4

- 

## Court of Appeals **Fifth District of Texas at Dallas**

JUDGMENT

JOVANY ALBA , Appellant
No. 05

- 1 4

- 00020

- CR V. THE STATE OF TEXAS , Appellee Appeal from the 204th Judicial District Court of Dallas County, Texas (Tr.Ct.No. F13

- 51275

- Q ). Opinion delivered by Justice Evans , Justices Francis and Stoddart participating.

Based on the Court’s opinion of this date, we DISMISS the appeal for want of jurisdiction.

Judgment entered this 24th day of November , 2014.- 5

- 

## Court of Appeals **Fifth District of Texas at Dallas**

JUDGMENT

JOVANY ALBA , Appellant
No. 05

- 1 4

- 00021

- CR V. THE STATE OF TEXAS , Appellee Appeal from the 204th Judicial District Court of Dallas County, Texas (Tr.Ct.No. F13

- 51192

- Q ). Opinion delivered by Justice Evans , Justices Francis and Stoddart participating.

Based on the Court’s opinion of this date, we DISMISS the appeal for want o f jurisdiction.

Judgment entered this 24th day of, 2014.