Jose Luis Gutierrez v. State

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-12-00737-CR

Jose Luis GUTIERREZ, Appellant

v.

The STATE of Texas, Appellee

From the 227th Judicial District Court, Bexar County, Texas Trial Court No. 2011CR4333 Honorable Philip A. Kazen, Jr., Judge Presiding

PER CURIAM

Sitting: Karen Angelini, Justice Sandee Bryan Marion, Justice Marialyn Barnard, Justice

Delivered and Filed: January 23, 2013

DISMISSED

Pursuant to a plea-bargain agreement, Jose Luis Gutierrez pled nolo contendere to

possession of a controlled substance with intent to deliver and was sentenced to ten years

imprisonment in accordance with the terms of his plea-bargain agreement. On October 15, 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

Gutierrez filed a notice of appeal, the trial court clerk sent copies of the certification and the 04-12-00737-CR

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).

“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 Gutierrez

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

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

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

Gutierrez 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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