Mark Anthony Lopez A/K/A Marco A. Lopez v. State

• Court: Court of Appeals of Texas
• Decided: February 11, 2009
• Docket: 04-08-00846-CR
• Status: Published

Opinion

i i i i i i

MEMORANDUM OPINION

No. 04-08-00846-CR

Mark Anthony LOPEZ, A/K/A Marco A. Lopez, Appellant

v.

The STATE of Texas, Appellee

From the 175th Judicial District Court, Bexar County, Texas Trial Court No. 2007-CR-5889 Honorable Mary Roman, Judge Presiding

PER CURIAM

Sitting: Catherine Stone, Chief Justice Steven C. Hilbig, Justice Marialyn Barnard, Justice

Delivered and Filed: February 11, 2009

DISMISSED

Pursuant to a plea bargain, Mark Anthony Lopez pleaded nolo contendere to driving while

intoxicated. As part of his plea-bargain, Lopez signed a separate “Waiver of Appeal” that states:

I understand that upon my plea of guilty or nolo contendere, where the punishment does not exceed that recommended by the prosecutor and agreed to by me, my right to appeal will be limited to only: (1) those matters that were raised by written motion filed and ruled on before trial, or (2) other matters on which the trial court gives me permission to appeal. I understand that I have this limited right to appeal. However, as part of my plea bargain agreement in this case, I knowingly and voluntarily waive my right to appeal under (1) and (2) in exchange for the prosecutor’s recommendation, provided that the punishment assessed by the court does not exceed our agreement. 04-08-00846-CR

The trial court imposed sentence in accordance with the agreement and signed a certificate stating

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

waived the right of appeal.” See TEX . R. APP . P. 25.2(a)(2). Lopez timely filed a notice of appeal.

The clerk’s record, which includes the trial court’s Rule 25.2(a)(2) certification and a written plea

bargain agreement, has been filed. See TEX . R. APP . P. 25.2(d). This court 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.

The clerk’s record establishes the punishment assessed by the court does not exceed the

punishment recommended by the prosecutor and agreed to by the defendant. Ordinarily, “[i]n 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.” TEX . R.

APP . P. 25.2(a)(2). However, when a defendant waives this limited right to appeal, the defendant

may appeal only if the trial court later gives its express permission. See Willis v. State, 121 S.W.3d

400, 403 (Tex. Crim. App. 2003); Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003).

The clerk’s record does not indicate the trial court gave Lopez permission to appeal. The trial court’s

certification therefore appears to accurately reflect that this is a plea bargain case, Lopez does not

have a right to appeal, and Lopez waived any limited right to appeal. See Dears v. State, 154 S.W.3d

610 (Tex. Crim. App. 2005) (holding that court of appeals should review clerk’s record to determine

whether trial court’s certification is accurate).

On December 18, 2008, we gave Lopez notice that the appeal would be dismissed unless

written consent to appeal and an amended certification showing he has the right to appeal were

signed by the trial judge and made part of the appellate record by January 20, 2009. See TEX . R.

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APP . P. 25.2(d); 37.1; Daniels v. State, 110 S.W.3d 174 (Tex. App.–San Antonio 2003, order), disp.

on merits, No. 04-03-00176-CR, 2003 WL 21508347 (July 2, 2003, pet. ref’d) (not designated for

publication). Neither written permission to appeal nor an amended certification showing Lopez has

the right to appeal has been filed. We therefore dismiss this appeal.

Do not publish

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