Richard Hernandez v. State ( 2017 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-17-00003-CR
Richard HERNANDEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR8929
Honorable Jefferson Moore, Judge Presiding
PER CURIAM
Sitting: Karen Angelini, Justice
Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: February 15, 2017
DISMISSED
Pursuant to a plea-bargain agreement, Richard Hernandez pled nolo contendere to
indecency with a child by contact and was sentenced to eight years in prison and a $1000.00 fine
in accordance with the terms of his plea-bargain agreement. On December 1, 2016, 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 Hernandez filed a notice
of appeal, the trial court clerk sent copies of the certification and notice of appeal to this court. See
04-17-00003-CR
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.” Id. 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. 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 Hernandez permission to
appeal. See id. The trial court’s certification, therefore, appears to accurately reflect that this is a
plea-bargain case and that Hernandez 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, informed Hernandez that this appeal would be dismissed pursuant to Texas
Rule of Appellate Procedure 25.2(d), unless an amended trial court certification showing that
Hernandez 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
amended trial court certification has been filed. Additionally, Hernandez’s court-appointed
appellate counsel has filed a response acknowledging that this appeal must be dismissed.
Therefore, this appeal is dismissed pursuant to Rule 25.2(d).
PER CURIAM
DO NOT PUBLISH
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