Alberto Ruiz v. State

• Court: Court of Appeals of Texas
• Decided: March 4, 2015
• Docket: 07-14-00368-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-14-00368-CR

ALBERTO RUIZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 69th District Court Moore County, Texas Trial Court No. 4976, Honorable Ron Enns, Presiding

March 4, 2015

MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.

Before the court is a motion for voluntary dismissal, filed by counsel for appellant

Alberto Ruiz. In its certification of appellant’s right of appeal pursuant to appellate rule

25.2(a)(2), the trial court stated that appellant’s case was a plea-bargain case and

appellant had no right of appeal. By letter of February 26, 2015, we notified counsel

that unless an amended certificate indicating appellant had the right of appeal was filed

by March 17, the appeal would be dismissed. The motion for voluntary dismissal is signed only by appellant’s counsel. The

motion states appellant was deported, remains outside the United States and thus is

unable to sign the motion for voluntary dismissal, as required by appellate rule 42.2(a).

In the motion, counsel acknowledges that appellant is unable to obtain a certification he

has a right of appeal.

The motion continues by stating that since involuntary dismissal is imminent

under rule 25.2(d), counsel requests for purposes of expediency that we invoke

appellate rule 2, suspend rule 42.2(a)’s requirement that appellant sign the motion, and

dismiss the appeal.

The requirement that the appellant in a criminal case sign a motion for voluntary

dismissal of the appeal is expressly stated in the rules that govern our practice, and we

do not lightly suspend it. We decline to do so in this case. The motion before us gives

no indication appellant is aware of its filing or authorizes dismissal of his appeal. We

therefore deny the motion for voluntary dismissal.

However, because appellant has not obtained an amended certificate indicating

a right of appeal, and has acknowledged his inability to do so, we will dismiss the

appeal under appellate rule 25.2(d). See TEX. R. APP. P. 25.2(d) (“The appeal must be

dismissed if a certification that shows the defendant has the right of appeal has not

been made part of the record under these rules”); Chavez v. State, 183 S.W.3d 675,

680 (Tex. Crim. App. 2006) (“A court of appeals, while having jurisdiction to ascertain

whether an appellant who plea-bargained is permitted to appeal by Rule 25.2(a)(2),

must dismiss a prohibited appeal without further action, regardless of the basis for the

2 appeal”); TEX. R. APP. P. 43.2(f) (a court of appeals may render judgment dismissing the

appeal). For that reason, the appeal is dismissed.

James T. Campbell Justice

Do not publish.