Albert Albarez v. State

• Court: Court of Appeals of Texas
• Decided: June 11, 2008
• Docket: 04-08-00196-CR
• Status: Published

Opinion

MEMORANDUM OPINION

No. 04-08-00196-CR

Albert ALBAREZ, Appellant

v.

The STATE of Texas, Appellee

From the 227th Judicial District Court, Bexar County, Texas Trial Court No. 2006-CR-7343 Honorable Philip A. Kazen, Jr., Judge Presiding

PER CURIAM

Sitting: Karen Angelini, Justice Sandee Bryan Marion, Justice Phylis J. Speedlin, Justice

Delivered and Filed: June 11, 2008

DISMISSED

Pursuant to a plea-bargain agreement, Albert Albarez pled nolo contendere to deadly conduct

with a firearm and was sentenced in accordance with the terms of his plea-bargain agreement. On

February 26, 2008, 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 Albarez filed a notice of appeal, the trial court clerk sent copies of the certification and notice 04-08-00196-CR

of appeal to this court. See 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.” TEX . R. APP . P. 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. 25.2(a)(2). 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 its

permission to appeal. The trial court’s certification, therefore, appears to accurately reflect that this

is a plea-bargain case and that Albarez 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 Albarez that this appeal would be dismissed pursuant to Texas Rule

of Appellate Procedure 25.2(d), unless an amended trial court certification showing that he 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).

DO NOT PUBLISH

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