Gilbert Martinez v. State ( 2005 )

  NUMBER 13-03-121-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

_________________________________________________________

GILBERT MARTINEZ,                                                         Appellant,

v.

THE STATE OF TEXAS,                                                      Appellee.

_________________________________________________________

On appeal from the 105th District Court

of Nueces County, Texas.

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MEMORANDUM OPINION

Before Justices Rodriguez, Castillo, and Garza

Memorandum Opinion Per Curiam

         Appellant, Gilbert Martinez, attempts to appeal a conviction for insurance fraud. Appellant pleaded guilty pursuant to a plea bargain and was sentenced to two years of confinement in compliance with that agreement. On February 4, 2003, the trial court certified that this “is a plea bargain case, and the Defendant has NO right of appeal.” See Tex. R. App. P. 25.2(a)(2). Subsequently, on March 26, 2003, the trial court certified that "the defendant has waived the right of appeal." See id.

         This Court notified appellant's counsel that the trial court's certification showed no right to appeal and ordered counsel to: (1) review the record; (2) determine whether appellant has a right to appeal; and (3) forward to this Court, by letter, counsel's findings as to whether appellant has a right to appeal, or, alternatively, advise this Court as to the existence of any amended certification.

         Subsequently, counsel filed a “Motion Explaining Appellant’s Right to Appeal.” Counsel's response fails to establish either that the certification currently on file with this Court is incorrect or that appellant otherwise has a right to appeal. Counsel asserts that appellant’s waiver was coerced or involuntary.

         A voluntary, intelligent, and knowing waiver of appeal, whether negotiated or non-negotiated, prevents a defendant from appealing without the consent of the trial court. Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003); Escochea v. State, 139 S.W.3d 67, 83-84 (Tex. App.–Corpus Christi, 2004, no pet.). Pursuant to our examination of the record, we find that appellant executed a valid waiver of his right to appeal. See Escochea, 139 S.W.3d at 83-84. Moreover, the reporter’s record in this case indicates that the trial court expressly questioned appellant regarding whether or not he had read and understood his waiver of rights, and appellant replied in the affirmative. Appellant stated that he freely and voluntarily signed the waiver. The trial court expressly denied appellant permission to appeal and certified that he has no right to appeal, which is consistent with a determination that appellant's written waiver of the right to appeal is valid. See id. The trial court is in a better position to determine the validity of appellant's waiver and if there is any arguable merit in his desire to appeal. Id. We determine that appellant executed a valid waiver of the right to appeal.

         Moreover, based on our review of the record, it appears that this is a plea-bargained case in which the punishment assessed did not exceed the plea agreement. In such a case, a defendant may appeal only those matters that were raised by written motion filed and ruled on before trial, or after obtaining the trial court's permission to appeal. Griffin v. State, 145 S.W.3d 645, 648-49 (Tex. Crim. App. 2004); Cooper v. State, 45 S.W.3d 77, 80 (Tex. Crim. App. 2001); see Tex. R. App. P. 25.2(a)(2). The record contains no motions filed and ruled on before trial, and as stated previously, appellant did not have the trial court’s permission to appeal.

         The record in this case supports the correctness of the trial court’s certification. Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005). The Texas Rules of Appellate Procedure provide that an appeal must be dismissed if the trial court's certification does not show that the defendant has the right of appeal. Tex. R. App. P. 25.2(d); see Tex. R. App. P. 37.1, 44.3, 44.4. Accordingly, the State’s motion to dismiss this appeal is granted and this appeal is dismissed. Any other pending motions are denied as moot.

                                                               PER CURIAM

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this the 12^th day of May, 2005.