Marcus Garcia v. State

• Court: Court of Appeals of Texas
• Decided: December 7, 2011
• Docket: 04-11-00717-CR
• Status: Published

Opinion

MEMORANDUM OPINION No. 04-11-00717-CR

Marcus GARCIA, Appellant

v.

The STATE of Texas, Appellee

From the 25th Judicial District Court, Guadalupe County, Texas Trial Court No. 11-0557-CR Honorable W.C. Kirkendall, Judge Presiding

PER CURIAM

Sitting: Rebecca Simmons, Justice Steven C. Hilbig, Justice Marialyn Barnard, Justice

Delivered and Filed: December 7, 2011

DISMISSED

On October 18, 2011, we notified pro se Appellant that the trial court’s certification in

this appeal states that “this criminal case is a plea-bargain case, and the defendant has NO right

of appeal.” The clerk’s record contains a written waiver signed by Appellant in which he entered

a plea of nolo contendere. The trial court’s judgment also shows there was a plea bargain

agreement, and the punishment assessed did not exceed the punishment recommended by the 04-11-00717-CR

prosecutor and agreed to by the defendant. Therefore, the trial court’s certification accurately

reflects that the criminal case is a plea-bargain case. See TEX. R. APP. P. 25.2(a)(2).

In our October 18, 2011 order, we warned Appellant that “[this] appeal must be

dismissed if a certification that shows the defendant has the right of appeal has not been made

part of the record under these rules” within the time allowed. See TEX. R. APP. P. 25.2(d). We

noted that this appeal would be dismissed pursuant to rule 25.2(d) unless the appellant caused an

amended trial court certification to be filed in this court by November 17, 2011, that shows

Appellant has the right of appeal. See TEX. R. APP. P. 25.2(d), 37.1; see also Chavez v. State,

183 S.W.3d 675, 680 (Tex. Crim. App. 2006); Daniels v. State, 110 S.W.3d 174 (Tex. App.—

San Antonio 2003, no pet.).

On October 24, 2011, pro se Appellant notified this court that he was appealing his

conviction based on ineffective assistance of counsel in investigating his case and in encouraging

him to accept a plea bargain. See Luna v. State, 985 S.W.2d 128, 130 (Tex. App.—San Antonio

1998, pet. ref’d) (dismissing an ineffective assistance of counsel issue for want of jurisdiction

where appellant had not complied with the appellate rules for appealing a plea-bargain case).

However, Appellant has failed to cause an amended trial court certification to be filed with this

court showing that he has a right of appeal. See TEX. R. APP. P. 25.2(a)(2) (stating the bases for

an appeal of a plea-bargain case). Accordingly, we dismiss this appeal. See id. R. 25.2(d).

DO NOT PUBLISH

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