Mark Anthony Guajardo v. State

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-15-00626-CR

Mark Anthony GUAJARDO, Appellant

v. The STATE The STATE of Texas, Appellee

From the 399th Judicial District Court, Bexar County, Texas Trial Court No. 2013CR7064 Honorable Ray Olivarri, Judge Presiding

Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice

Delivered and Filed: December 9, 2015

DISMISSED

Pursuant to a plea-bargain agreement, Marc Anthony Guajardo pled guilty to aggravated

sexual assault of a child and was sentenced to thirty years and a fine of $1500 in accordance with

the terms of his plea-bargain agreement. On September 1, 2015, 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 Guajardo 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 04-15-00626-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 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 Guajardo 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, informed Guajardo 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).

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