Oscar Fabella A/K/A Oscar Gabriel Fabela v. State

• Court: Court of Appeals of Texas
• Decided: January 14, 2009
• Docket: 04-08-00852-CR
• Status: Published

Opinion

i i i i i i

MEMORANDUM OPINION

No. 04-08-00852-CR

Oscar FABELLA a/k/a Oscar Gabriel Fabela, Appellant

v.

The STATE of Texas, Appellee

From the 187th Judicial District Court, Bexar County, Texas Trial Court No. 2007-CR-6573 Honorable Raymond Angelini, Judge Presiding

PER CURIAM

Sitting: Sandee Bryan Marion, Justice Phylis J. Speedlin, Justice Rebecca Simmons, Justice

Delivered and Filed: January 14, 2009

DISMISSED

Pursuant to a plea bargain agreement, appellant, Oscar Fabella, pled nolo contendere to

sexual assault of a child. On November 10, 2008, the trial court imposed sentence and 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 appellant filed his notice of appeal, 04-08-00852-CR

the court clerk sent copies of the certification and notice of appeal to this court. See TEX . R. APP .

P. 25.2(e). Appellant filed a general pro se notice of appeal, in which he contends the punishment

exceeded that recommended by the State, the trial court denied a pre-trial motion for appointment

of a female psychiatrist, and the trial court granted him permission to appeal. See TEX . R. APP . P.

25.2(a)(2) (in a plea bargain case, a defendant may appeal only those matters raised in a written

motion ruled on before trial or after obtaining the trial court’s permission to appeal). The court’s

docket sheet does not indicate any orders ruling on these pre-trial motions and the certification does

not indicate appellant was given permission to appeal. The clerk’s record contains a written plea

bargain agreement, and the punishment assessed did not exceed the punishment recommended by

the State and agreed to by the appellant; therefore, the trial court’s certification reflects that

appellant’s case is a plea bargain case and he does not have a right of appeal. See TEX . R. APP . P.

25.2(a)(2). Rule 25.2(d) provides, “The 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.” TEX . R.

APP . P. 25.2(d). Accordingly, on December 15, 2008, this court issued an order stating this appeal

would be dismissed pursuant to Rule 25.2(d) unless an amended trial court certification that shows

defendant has the right of appeal was made part of the appellate record. See Daniels v. State,110

S.W.3d 174 (Tex. App.—San Antonio 2003, order); TEX . R. APP . P. 25.2(d); 37.1.

On December 22, 2008, defendant’s appellate counsel filed a letter stating she had reviewed

the record and could “find no right of appeal for Appellant . . . [and] this court has no choice but to

dismiss the appeal.” In light of the record presented, we agree with defendant’s counsel that Rule

25.2(d) requires this court to dismiss this appeal. Accordingly, this appeal is dismissed.

DO NOT PUBLISH

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