Jose Andres Romero v. the State of Texas ( 2022 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-22-00376-CR
Jose Andres ROMERO,
Appellant
v.
The STATE of Texas,
Appellee
From the 216th Judicial District Court, Gillespie County, Texas
Trial Court No. 7291
Honorable Albert D. Pattillo, III, Judge Presiding
PER CURIAM
Sitting: Beth Watkins, Justice
Liza A. Rodriguez, Justice
Lori I. Valenzuela, Justice
Delivered and Filed: October 19, 2022
DISMISSED
The trial court signed a judgment of conviction indicating that appellant Jose Andres
Romero had pleaded guilty to the charged offense in the underlying case, and appellant filed a pro
se notice of appeal. The clerk’s record shows the trial court signed a certification stating the
underlying case “is a plea-bargain case, and the defendant has NO right of appeal.” See TEX. R.
APP. P. 25.2(a)(2). 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.” TEX. R. APP. P. 25.2(d).
04-22-00376-CR
This court has a duty to examine the record to determine whether the trial court’s
certification of defendant’s right to appeal is accurate. See Dears v. State, 154 S.W.3d 610, 614–
15 (Tex. Crim. App. 2005). Generally, this review involves an examination of the clerk’s record
to determine whether the punishment assessed by the trial court exceeds the punishment
recommended by the prosecutor and agreed to by the defendant. See TEX. CODE CRIM. PROC. ANN.
art. 44.02; Shankle v. State, 119 S.W.3d 808, 811–12 (Tex. Crim. App. 2003). Here, because the
clerk’s record does not establish that the punishment assessed by the trial court does not exceed
the punishment recommended by the prosecutor and agreed to by the defendant, we ordered the
court reporter to file the reporter’s record of any hearings related to appellant’s guilty plea. The
reporter’s record, which was filed on August 29, 2022, shows that appellant agreed to plead guilty
in exchange for the State’s agreement to: (1) waive two enhancement allegations; and (2)
recommend that appellant’s sentences run concurrently rather than consecutively. The reporter’s
record further shows that the trial court confirmed with appellant and his appointed counsel that
these provisions were part of the plea agreement. Finally, the reporter’s record shows that appellant
stated that he understood that he was waiving his right to appeal as part of the plea agreement.
Based on these facts, we issued an order noting that the reporter’s record appears to support
the trial court’s certification that appellant has no right of appeal. See TEX. R. APP. P. 25.2(a)(2);
Harper v. State, 567 S.W.3d 450, 454–55 (Tex. App.—Fort Worth 2019, no pet.) (holding that
Rule 25.2 applies to plea agreements “[w]here a charge bargain effectively caps the maximum
punishment”). We therefore notified appellant that this appeal would be dismissed pursuant to
Rule 25.2(d) of the Texas Rules of Appellate Procedure unless an amended certification showing
that appellant has the right to appeal was made part of the appellate record by October 3, 2022.
See TEX. R. APP. P. 25.2(d), 37.1; Daniels v. State, 110 S.W.3d 174 (Tex. App.—San Antonio
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04-22-00376-CR
2003, order), disp. on merits, No. 04-03-00176-CR, 2003 WL 21508347 (July 2, 2003, pet. ref’d)
(not designated for publication).
On October 3, 2022, appellant’s appointed counsel filed a letter stating that the record
shows appellant waived his right of appeal and that counsel could not “find any legitimate or good
faith legal or factual grounds to support filing an amended certification showing Appellant has the
right to appeal.” We therefore dismiss this appeal. See TEX. R. APP. P. 25.2(d).
PER CURIAM
DO NOT PUBLISH
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