Albert Albarez v. State ( 2008 )

MEMORANDUM OPINION
No. 04-08-00196-CR
Albert ALBAREZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2006-CR-7343
Honorable Philip A. Kazen, Jr., Judge Presiding
PER CURIAM
Sitting: Karen Angelini, Justice
Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: June 11, 2008
DISMISSED
Pursuant to a plea-bargain agreement, Albert Albarez pled nolo contendere to deadly conduct
with a firearm and was sentenced in accordance with the terms of his plea-bargain agreement. On
February 26, 2008, the trial court signed a certification of defendant’s right to appeal stating that this
“is a plea-bargain case, and the defendant has NO right of appeal.” See TEX . R. APP . P. 25.2(a)(2).
After Albarez filed a notice of appeal, the trial court clerk sent copies of the certification and notice
04-08-00196-CR
of appeal to this court. See id. 25.2(e). The clerk’s record, which includes the trial court’s rule
25.2(a)(2) certification, has been filed. See id. 25.2(d).
“In a plea bargain case ... a defendant may appeal only: (A) those matters that were raised by
written motion filed and ruled on before trial, or (B) after getting the trial court’s permission to
appeal.” TEX . R. APP . P. 25.2(a)(2). The clerk’s record, which contains a written plea bargain,
establishes the punishment assessed by the court does not exceed the punishment recommended by
the prosecutor and agreed to by the defendant. See id. 25.2(a)(2). The clerk’s record does not include
a written motion filed and ruled upon before trial; nor does it indicate that the trial court gave its
permission to appeal. The trial court’s certification, therefore, appears to accurately reflect that this
is a plea-bargain case and that Albarez does not have a right to appeal. We must dismiss an appeal
“if a certification that shows the defendant has the right of appeal has not been made part of the
record.” Id. 25.2(d).
We, therefore, warned Albarez that this appeal would be dismissed pursuant to Texas Rule
of Appellate Procedure 25.2(d), unless an amended trial court certification showing that he had the
right to appeal was made part of the appellate record. See TEX . R. APP . P. 25.2(d), 37.1; Daniels v.
State, 110 S.W.3d 174 (Tex. App.—San Antonio 2003, order). No such amended trial court
certification has been filed. This appeal is, therefore, dismissed pursuant to rule 25.2(d).
PER CURIAM
DO NOT PUBLISH
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