Florencio Palomares, Jr. v. the State of Texas ( 2021 )

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Fourth Court of Appeals
San Antonio, Texas
August 10, 2021
No. 04-21-00304-CR
Florencio PALOMARES, Jr.,
Appellant
v.
The STATE of Texas,
Appellee
From the 25th Judicial District Court, Guadalupe County, Texas
Trial Court No. 19-2567-CR-C
Honorable William D. Old III, Judge Presiding
ORDER
Appellant Florencio Palomares, Jr. entered into a plea bargain with the State
pursuant to which he pleaded guilty to aggravated assault. 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.” See TEX. R. APP. P. 25.2(a)(2).
Appellant filed a notice of appeal, and the district clerk filed a copy of the clerk’s record,
which includes the trial court’s Rule 25.2(a)(2) certification and a written plea bargain
agreement. See id. R. 25.2(d). 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.
Here, the clerk’s record establishes the punishment assessed by the trial court
does not exceed the punishment recommended by the prosecutor and agreed to by the
appellant, and appellant’s notice of appeal explicitly acknowledges this is the case. See
id. R. 25.2(a)(2). The clerk’s record does not reflect the trial court gave permission to
appeal or that appellant’s specific appeal is expressly authorized by statute. Id. While
appellant’s notice of appeal indicates he wishes to appeal “matters that were raised by
written motion filed and ruled on before trial,” the clerk’s record shows the only matters
raised by written motion filed before trial are: (1) a motion to release appellant and set
reasonable bail; (2) a motion to reduce bond; (3) a motion in limine; (4) a
“comprehensive request for notice of intention to introduce evidence”; (5) a motion for
discovery and disclosure of exculpatory, mitigating, or inconsistent evidence; (6) a
“comprehensive motion for discovery”; (7) a motion requesting disclosure of expert
witnesses; (8) a motion for discovery of punishment evidence; (9) a motion for the judge
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to assess punishment; and (10) a motion to redact portions of appellant’s recorded
statement to law enforcement. While the record shows the trial court denied appellant’s
motion to reduce bond, any appeal of that ruling was rendered moot by appellant’s
subsequent conviction. See Armendarez v. State, 798 S.W.2d 291, 291 (Tex. Crim. App.
1990). Moreover, the record does not show the trial court ever ruled on appellant’s other
pretrial motions. See TEX. R. APP. P. 25.2(a)(2). As a result, the record appear to support
the trial court’s certification that appellant does not have a right to appeal. See id.; see
also 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).
Accordingly, appellant is given notice that this appeal will 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 is made part of the appellate
record by September 9, 2021. 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.
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Beth Watkins, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 10th day of August, 2021.
___________________________________
MICHAEL A. CRUZ, Clerk of Court