Anthony Guerra v. State

• Court: Court of Appeals of Texas
• Decided: March 13, 2019
• Docket: 04-18-00876-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-18-00876-CR

Anthony GUERRA, Appellant

v.

The STATE of Texas, Appellee

From the 175th Judicial District Court, Bexar County, Texas Trial Court No. 2017CR4508 Honorable Catherine Torres-Stahl, Judge Presiding

PER CURIAM

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

Delivered and Filed: March 13, 2019

DISMISSED

Pursuant to a plea-bargain agreement, appellant pleaded guilty to five counts of aggravated

assault with a deadly weapon. The trial court assessed punishment at five terms of imprisonment

for five years, with the sentences to run concurrently. On October 23, 2018, 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 appellant filed a notice

of appeal, the trial court clerk sent copies of the certification and notice of appeal to this court. See 04-18-00876-CR

id. 25.2(e). The full 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 appellant 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 appellant 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. Rather, appellant’s appointed counsel has filed a response

agreeing that appellant does not have the right to appeal. Accordingly, we dismiss this appeal

pursuant to Rule 25.2(d).

DO NOT PUBLISH

-2-