Andrew Alfonso Ybarra v. State

Opinion

MEMORANDUM OPINION No. 04-12-00161-CR

Andrew Alfonso YBARRA, Appellant

v.

The STATE of Texas, Appellee

From the 290th Judicial District Court, Bexar County, Texas Trial Court No. 2007CR0978 Honorable Melisa Skinner, Judge Presiding

PER CURIAM

Sitting: Catherine Stone, Chief Justice Karen Angelini, Justice Marialyn Barnard, Justice

Delivered and Filed: May 16, 2012

DISMISSED

Pursuant to a plea bargain agreement, appellant Andrew Alfonso Ybarra pled nolo

contendere to the offense of indecency with a child by contact. As part of his plea-bargain,

appellant signed a separate “Waiver of Appeal.” The trial court imposed sentence and signed a

certificate 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 appellant timely filed a notice of appeal, the clerk sent

copies of the certification and notice of appeal to this court. See TEX. R. APP. P. 25.2(e). The 04-12-00161-CR

clerk’s record, which includes the plea bargain agreement and the trial court’s rule 25.2(a)(2)

certification, has been filed. See TEX. R. APP. P. 25.2(d).

The clerk’s record establishes the punishment assessed by the court does not exceed the

punishment recommended by the prosecutor and agreed to by the defendant. See TEX. R. APP. P.

25.2(a)(2). After reviewing the clerk’s record, the trial court’s certification therefore appears to

accurately reflect that this is a plea bargain case and Ybarra does not have a right to appeal. See

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). This court

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).

On March 27, 2012, we gave appellant notice that the appeal would be dismissed unless

written consent to appeal and an amended certification showing appellant has the right to appeal

were signed by the trial judge and made part of the appellate record by April 26, 2012. 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 (Jul. 2, 2003, pet. ref’d) (not

designated for publication). Neither written permission to appeal nor an amended certification

showing appellant has the right to appeal has been filed. We therefore dismiss this appeal.

DO NOT PUBLISH

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