Opinion issued April 15, 2014

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 1 4
- 00 078
- CR

——————————— JOSEPH EARL FRANCIS , Appellant

V. THE STATE OF TEXAS, Appellee

On Appeal from the 3 38th District Court

Harris County, Texas Trial Court Cause No. 1342243

MEMORANDUM OPINION Appellant Joseph Earl Francis plead ed guilty , pursuant to an agreement with the State that punishmen t be capped at confinement for 3 5 years, to the first degree felony offense of murder

. See T EX
. P ENAL C ODE A NN
. § 19.02 (West 2011 ). The trial court found appellant guilty and, in accordance with appellant’s plea2

agreement with the State, assessed punishment at confinement for 3 5 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 barga in case is one in which “a defendant’s plea was guilty or nolo contendere and the punishment did not exceed the punishment recommende d by the prosecutor and agreed to by the defendant.” T EX
. R. A PP
. P. 25.2(a)(2). In a plea bargain case, a defendant may a ppeal 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 h as not been m ade part of the record.
T EX
. R. A PP
. P. 25.2 (d).
The clerk’s record reflects that appellant pleaded guilty in exchange for the State’ s recommendation that punishmen t be capped at confinement for 3 5 years.
A n 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.); W aters

v. State , 124 S.W.3d 825, 826

– 27 (Tex. App.

— Houston [1 4th Dist.] 2003, pet. ref’d);

. The record of the plea hearing reflects that the trial court so admonished appellant and that appellant understood that he would not have the right of appeal.3

T he trial court assessed punishment at confinement for 3 5 years , in accordance with appellant’s agreement with the State

. 1 We conclude that the record supports the trial court’s certification. See T EX
. R. A PP
. 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 T EX
. R. A PP
. P. 25.2(a)(2). Because appellant has no right of appeal , we must dismiss the appeal

. See T EX
. R.
A PP
. 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, regardl ess of the basis fo r the appeal.”)

. Accordingly, we dismiss the appeal for lack of jurisdiction

. See T EX
. R.
A PP
. P. 43.2(f). We dismiss any pending motions as moot. PER CURIAM Panel consists of Chief J ustice Radack and Justices Massengale and Huddle. Do not publish. T EX
. R. A PP
. P. 47.2( b).

1 T he trial court’s judgment states, “Term of Plea Bargain: Without an Agreed Recommendation.” S uch 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 ent ered pursuant to agreed sentencing cap).