Alberto Hernandez, Jr. v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: December 4, 2024
• Docket: 04-24-00693-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-24-00693-CR

Alberto HERNANDEZ, Jr., Appellant

v.

The STATE of Texas, Appellee

From the 81st Judicial District Court, Frio County, Texas Trial Court No. 23-05-00077CRF Honorable Jennifer Dillingham, Judge Presiding

PER CURIAM

Sitting: Irene Rios, Justice Beth Watkins, Justice Liza A. Rodriguez, Justice

Delivered and Filed: December 4, 2024

DISMISSED

Pursuant to a plea-bargain agreement, appellant Alberto Hernandez, Jr. pled guilty to one

count of indecency with a child by sexual contact and, in accordance with the terms of his plea-

bargain agreement, was sentenced to eighteen years’ imprisonment. On October 8, 2024, the trial

court signed a certification of defendant’s right to appeal stating “the defendant has waived the

right of appeal” and this “is a plea-bargain case, and the defendant has NO right of appeal.” See

TEX. R. APP. P. 25.2(a)(2). After Hernandez filed a notice of appeal, the trial court clerk sent 04-24-00693-CR

copies of the certification and notice of appeal to this court. See id. 25.2(e). The clerk’s record,

which includes the trial court’s 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, (B) after getting the trial court’s permission to

appeal, or (C) where the specific appeal is expressly authorized by statute.” 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

Hernandez. 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 its permission to appeal. See id. Thus, the

trial court’s certification appears to accurately reflect that this is a plea-bargain case and Hernandez

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).

On October 21, 2024, we informed Hernandez that this appeal would be dismissed pursuant

to Rule 25.2(d) of the Texas Rules of Appellate Procedure unless an amended trial court

certification showing that Hernandez has 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, 177 (Tex. App.—San

Antonio 2003, no pet.). To date, Hernandez has not responded to our order and no such amended

trial court certification has been filed. Therefore, this appeal is dismissed pursuant to Rule 25.2(d)

of the Texas Rules of Appellate Procedure.

DO NOT PUBLISH

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