Javier Gonzalez v. State

Opinion

MEMORANDUM OPINION No. 04-10-00907-CR

Javier GONZALEZ, Appellant

v.

The STATE of Texas, Appellee

From the 437th Judicial District Court, Bexar County, Texas Trial Court No. 2009CR13013 Honorable Lori I. Valenzuela, Judge Presiding

PER CURIAM

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

Delivered and Filed: February 16, 2011

DISMISSED

Pursuant to a plea-bargain agreement, Javier Gonzalez pled nolo contendere to driving

while intoxicated and was sentenced to eight years imprisonment in accordance with the terms of

his plea-bargain agreement. On October 7, 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 Gonzalez 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 04-10-00907-CR

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

Gonzalez permission to appeal. See id. The trial court’s certification, therefore, appears to

accurately reflect that this is a plea-bargain case and that Gonzalez 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 Gonzalez that this appeal would be dismissed pursuant to Texas

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

Gonzalez 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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