Richard Lares v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: October 18, 2023
• Docket: 04-23-00618-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-23-00618-CR

Richard LARES, Appellant

v.

The STATE of Texas, Appellee

From the 399th Judicial District Court, Bexar County, Texas Trial Court No. 2006-CR-10110 Honorable Frank J. Castro, Judge Presiding

PER CURIAM

Sitting: Patricia O. Alvarez, Justice Liza A. Rodriguez, Justice Lori I. Valenzuela, Justice

Delivered and Filed: October 18, 2023

DISMISSED

On August 10, 2009, Richard Lares pled nolo contendere to aggravated sexual assault of a

child pursuant to a plea-bargain agreement. The trial court sentenced Lares to thirty years in prison

and a $1,500.00 fine in accordance with the terms of the plea-bargain agreement. Thereafter, the

trial court signed a judgment of conviction.

On June 2, 2023, the trial court signed a judgment nunc pro tunc correcting a time credit

error in the judgment. On June 20, 2023, Lares filed a notice of appeal from the judgment nunc

pro tunc. Thereafter, the trial court signed a certification of defendant’s right to appeal stating that 04-23-00618-CR

this “is a plea-bargain case, and the defendant has NO right of appeal.” See TEX. R. APP. P.

25.2(a)(2).

“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, (B) after getting the trial court’s permission to

appeal, or (C) where the specific appeal is expressly authorized by statute.” 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 Lares. See

id. Furthermore, 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. Thus, the trial

court’s certification appears to accurately reflect that this is a plea-bargain case and that Lares does

not have a right to appeal pursuant to Rule 25.2. See id. 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.”

TEX. R. APP. P. 25.2(d).

We informed Lares 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 on or before October 6, 2023. See TEX. R.

APP. P. 25.2(d), 37.1. No amended trial court certification has been filed. Accordingly, this appeal

is dismissed pursuant to Rule 25.2(d). See TEX. R. APP. P. 25.2(d); Blanton v. State, No. 05-09-

00758-CR, 2013 WL 3874519, at *2 (Tex. App.—Dallas July 24, 2012, pet. ref’d) (not designated

for publication) (dismissing, under Rule 25.2(a)(2), an appeal from a nunc pro tunc judgment

correcting the judgment in a plea-bargain case); see also Chavez v. State, 183 S.W.3d 675, 680

(Tex. Crim. App. 2006) (“A court of appeals, while having jurisdiction to ascertain whether an

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appellant who plea-bargained is permitted to appeal by Rule 25.2(a)(2), must dismiss a prohibited

appeal without further action, regardless of the basis for the appeal.”).

DO NOT PUBLISH

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