Javier Gonzalez v. State ( 2011 )

MEMORANDUM OPINION
No. 04-10-00907-CR
Javier GONZALEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 437th Judicial District Court, Bexar County, Texas
Trial Court No. 2009CR13013
Honorable Lori I. Valenzuela, Judge Presiding
PER CURIAM
Sitting: Karen Angelini, Justice
Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: February 16, 2011
DISMISSED
Pursuant to a plea-bargain agreement, Javier Gonzalez pled nolo contendere to driving
while intoxicated and was sentenced to eight years imprisonment in accordance with the terms of
his plea-bargain agreement. On October 7, 2010, 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 Gonzalez filed a notice of appeal, the trial
court clerk sent copies of the certification and notice of appeal to this court. See id. 25.2(e). The
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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
Gonzalez permission to appeal. See id. The trial court’s certification, therefore, appears to
accurately reflect that this is a plea-bargain case and that Gonzalez 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 Gonzalez that this appeal would be dismissed pursuant to Texas
Rule of Appellate Procedure 25.2(d), unless an amended trial court certification showing that
Gonzalez 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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