Erik M. Rodriguez v. State

Opinion

MEMORANDUM OPINION No. 04-11-00169-CR

Erik M. RODRIGUEZ, Appellant

v.

The STATE of Texas, Appellee

From the 226th Judicial District Court, Bexar County, Texas Trial Court No. 2010CR6673 Honorable Sid L. Harle, Judge Presiding

PER CURIAM

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

Delivered and Filed: April 27, 2011

DISMISSED

Pursuant to a plea-bargain agreement, Erik Rodriguez pled nolo contendere to aggravated

sexual assault of a child and was sentenced to thirty years imprisonment in accordance with the

terms of his plea-bargain agreement. The trial court then 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 Rodriguez 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 04-11-00169-CR

record, which includes the trial court’s Rule 25.2(a)(2) certification, was then 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 Rodriguez 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 Rodriguez 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).

Do not publish

-2-