Lorenzo Garcia III v. State

• Court: Court of Appeals of Texas
• Decided: August 26, 2009
• Docket: 04-09-00426-CR
• Status: Published

Opinion

i i i i i i

MEMORANDUM OPINION

No. 04-09-00426-CR

Lorenzo GARCIA III, Appellant

v.

The STATE of Texas, Appellee

From the 399th Judicial District Court, Bexar County, Texas Trial Court No. 2001-CR-4655A Honorable Juanita A. Vasquez-Gardner, Judge Presiding

PER CURIAM

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

Delivered and Filed: August 26, 2009

DISMISSED

Pursuant to a plea-bargain agreement, Lorenzo Garcia III pled nolo contendere to murder and

two counts of aggravated assault with a deadly weapon (repeater) and was sentenced to thirty years

imprisonment and a $2000 fine in accordance with the terms of his plea-bargain agreement. On July

14, 2009, 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 04-09-00426-CR

Garcia 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).

“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 Garcia 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 Garcia 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

-2-