Gabriel Arce v. State

Opinion

MEMORANDUM OPINION No. 04-12-00068-CR

Gabriel ARCE, Appellant

v.

The STATE of Texas, Appellee

From the 227th Judicial District Court, Bexar County, Texas Trial Court No. 2010CR8756 Honorable Philip A. Kazen, Jr., Judge Presiding

PER CURIAM

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

Delivered and Filed: April 11, 2012

DISMISSED

Pursuant to a plea-bargain agreement, Gabriel Arce pled nolo contendere to Assault-

Family-2nd Offense and was sentenced to five years in prison and a fine of $1000.00 in

accordance with the terms of his plea-bargain agreement. The trial court has 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 Arce filed a notice of

appeal, the trial court clerk sent copies of the certification and notice of appeal to this court. See 04-12-00068-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 Arce 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 Arce 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. This appeal is, therefore, dismissed pursuant to Rule 25.2(d).

DO NOT PUBLISH

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