Nestor Hernandez v. State

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-13-00017-CR

Nestor HERNANDEZ, Appellant

v.

The STATE of Texas, Appellee

From the 175th Judicial District Court, Bexar County, Texas Trial Court No. 2011CR9543 Honorable Mary D. Roman, Judge Presiding

PER CURIAM

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

Delivered and Filed: March 6, 2013

DISMISSED

Pursuant to a plea-bargain agreement, Nestor Hernandez pled nolo contendere to arson

and was sentenced to ten years in prison in accordance with the terms of his plea-bargain

agreement. On November 26, 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 Hernandez 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). 04-13-00017-CR

“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 indicates 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 Hernandez permission to appeal. See id.

The trial court’s certification, therefore, appears to accurately reflect that this is a plea-bargain

case and that Hernandez 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 Hernandez that this appeal would be dismissed pursuant to Texas

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

Hernandez 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-