Raul Pena v. State

• Court: Court of Appeals of Texas
• Decided: April 30, 2008
• Docket: 04-08-00208-CR
• Status: Published

Opinion

MEMORANDUM OPINION

No. 04-08-00208-CR

Raul PENA, Appellant

v.

The STATE of Texas, Appellee

From the 187th Judicial District Court, Bexar County, Texas Trial Court No. 2005-CR-2657 Honorable Raymond Angelini, Judge Presiding

PER CURIAM

Sitting: Alma L. López, Chief Justice

Catherine Stone, Justice

Steven C. Hilbig, Justice

Delivered and Filed: April 30, 2008

DISMISSED

Raul Pena pleaded nolo contendere to indecency with a child by contact pursuant to a plea bargain agreement. The trial court imposed sentence and signed a certificate 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). Pena timely filed a notice of appeal. The clerk's record, which includes the plea bargain agreement and the trial court's Rule 25.2(a)(2) certification, 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 this is a plea bargain case; that is, the punishment assessed by the court does not exceed the punishment recommended by the prosecutor and agreed to by the defendant. Pena's appointed appellate counsel has advised the court in writing that she has reviewed the record and can find no right of appeal. After reviewing the record and counsel's notice, we agree that Pena does not have a 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). We therefore dismiss this appeal. Tex. R. App. P. 25.2(d).

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