Joseph Rios v. State ( 2015 )

The State of TexasAppellee/s
Fourth Court of Appeals
San Antonio, Texas
May 7, 2015
No. 04-15-00261-CR
Joseph RIOS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2014CR4757
Honorable Philip A. Kazen, Jr., Judge Presiding
ORDER
Appellant entered into a plea bargain with the State, pursuant to which he pleaded guilty nolo
contendere to “BURGLARY HABITATION – FORCE (REPEATER).” As part of his plea
bargain, *** signed a separate “Waiver of Appeal” that states:
I understand that upon my plea of guilty or nolo contendere, where the
punishment does not exceed that recommended by the prosecutor and agreed to
by me, my right to appeal will be limited to only: (1) those matters that were
raised by written motion filed and ruled on before trial, or (2) other matters on
which the trial court gives me permission to appeal. I understand that I have this
limited right to appeal. However, as part of my plea bargain agreement in this
case, I knowingly and voluntarily waive my right to appeal under (1) and (2) in
exchange for the prosecutor’s recommendation, provided that the punishment
assessed by the court does not exceed our agreement.
The trial court imposed sentence in accordance with the agreement 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). Appellant timely filed
a notice of appeal. The clerk’s record, which includes the trial court’s rule 25.2(a)(2)
certification and a written plea bargain agreement, has been filed. 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 does not indicate the trial court gave appellant permission to
appeal. The trial court’s certification therefore appears to accurately reflect that this is a plea
bargain case, appellant does not have a right to appeal, and appellant 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).
Appellant is hereby given notice that this appeal will be dismissed pursuant to rule
25.2(d) of the Texas Rules of Appellate Procedure unless written consent to appeal and an
amended certification showing that appellant has the right to appeal is made part of the appellate
record on or before June 8, 2015. See 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).
We order all appellate deadlines 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.
_________________________________
Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 7th day of May, 2015.
___________________________________
Keith E. Hottle
Clerk of Court