Manuel G. Munoz v. State ( 2014 )

The State of TexasAppellee/s
Fourth Court of Appeals
San Antonio, Texas
December 29, 2014
No. 04-14-00877-CR
Manuel G. MUNOZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 437th Judicial District Court, Bexar County, Texas
Trial Court No. 2014CR2011
Honorable Lori I. Valenzuela, Judge Presiding
ORDER
Manuel Munoz entered into a plea bargain with the State, pursuant to which he pleaded
nolo contendere to the offense of failing to stop and render aid. As part of his plea bargain,
Munoz signed a separate “Waiver of Appeal.” The trial court imposed sentence in accordance
with the agreement on October 17, 2014, and signed a certificate stating this “is a plea-bargain
case, and the defendant has NO right of appeal” and “the defendant has waived the right of
appeal.” See TEX. R. APP. P. 25.2(a)(2). Munoz did not file a motion for new trial.
On December 15, 2014, Munoz filed a notice of appeal. He did not file a motion for
extension of time to file the notice of appeal. See Tex. R. App. P. 26.2(a)(1), 26.3 (stating notice
of appeal is due within thirty days after sentence is imposed in open court and motion for
extension of time is due within fifteen days after deadline for filing notice of appeal).
The clerk’s record also includes the trial court’s Rule 25.2(a)(2) certification and the
written plea bargain agreement. See TEX. R. APP. P. 25.2(d). This court 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. The clerk’s record establishes the punishment assessed by the court does not exceed
the punishment recommended by the prosecutor and agreed to by the defendant. Ordinarily, “[i]n
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). However, when a defendant waives this limited right to appeal, the
defendant may appeal only if the trial court later gives its express permission. See Willis v. State,
121 S.W.3d 400, 403 (Tex. Crim. App. 2003); Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim.
App. 2003). The clerk’s record reflects the trial court denied permission to appeal. The trial
court’s certification therefore appears to accurately reflect that this is a plea bargain case, Munoz
does not have a right to appeal, and he waived any limited right to appeal. See Dears v. State,
154 S.W.3d 610 (Tex. Crim. App. 2005) (holding that court of appeals should review clerk’s
record to determine whether trial court’s certification is accurate).
Munoz is given notice that this appeal will be dismissed unless, by January 19, 2015, (1)
Munoz files a response establishing that the notice of appeal was timely filed and (2) the trial
court’s written permission to appeal and an amended certification showing that Munoz has the
right to appeal are made part of the appellate record. See Olivo v. State, 918 S.W.2d 519, 522
(Tex. Crim. App. 1996) (holding that timely notice of appeal is necessary to invoke court of
appeals’ jurisdiction); TEX. R. APP. P. 25.2(d); 37.1; Daniels v. State, 110 S.W.3d 174 (Tex.
App.—San Antonio 2003, order), disp. on merits, No. 04-03-00176-CR, 2003 WL 21508347
(July 2, 2003, pet. ref’d) (not designated for publication). If appellant fails to satisfactorily
respond within the time provided, the appeal will be dismissed.
We order all appellate deadlines are suspended until further order of the court. We
further order the clerk of this court to serve copies of this order on the attorneys of record and
the court reporter.
_________________________________
Karen Angelini, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 29th day of December, 2014.
___________________________________
Keith E. Hottle
Clerk of Court