Angel Aguirre v. State

Opinion

MEMORANDUM OPINION No. 04-10-00826-CR

Angel AGUIRRE, Appellant

v.

The STATE of Texas, Appellee

From the 186th Judicial District Court, Bexar County, Texas Trial Court No. 2009CR12416 Honorable Maria Teresa Herr, Judge Presiding

PER CURIAM

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

Delivered and Filed: February 9, 2011

DISMISSED

Pursuant to a plea-bargain agreement, Angel Aguirre pled nolo contendere to aggravated

robbery and was sentenced to ten years of imprisonment and a fine of $2,000 in accordance with

the terms of his plea-bargain agreement. On October 28, 2010, 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 Aguirre filed a notice of

appeal, the trial court clerk sent copies of the certification and notice of appeal to this court. See 04-10-00826-CR

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.” 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 the defendant. 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. The trial court’s certification, therefore, appears to accurately

reflect that this is a plea-bargain case and that Aguirre 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 Aguirre 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.CSan Antonio 2003, order). No such amended trial

court certification has been filed. This appeal is, therefore, dismissed pursuant to Rule 25.2(d).

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