David Delgado v. State

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-12-00566-CR

David DELGADO, Appellant

v.

The STATE of Texas, Appellee

From the 186th Judicial District Court, Bexar County, Texas Trial Court No. 2012CR4757 Honorable Maria Teresa Herr, Judge Presiding

PER CURIAM

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

Delivered and Filed: November 14, 2012

DISMISSED

Pursuant to a plea-bargain agreement, David Delgado pled guilty to aggravated robbery

and was sentenced to ten years and a fine of $2,000 in accordance with the terms of his plea-

bargain agreement. On August 6, 2012, 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 Delgado filed a notice of appeal, the trial court clerk sent 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 Rule 25.2(a)(2) certification, has been filed. See id. 25.2(d). 04-12-00566-CR

“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 Delgado 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 Delgado that this appeal would be dismissed pursuant to Texas

Rule of Appellate Procedure 25.2(d), unless an amended trial court certification showing that

Delgado has the right to appeal is made part of the appellate record by October 18, 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). No such amended trial court certification has been filed. This appeal is, therefore,

dismissed pursuant to Rule 25.2(d).

Do not publish

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