Victor R. Martinez v. State

• Court: Court of Appeals of Texas
• Decided: January 28, 2015
• Docket: 04-14-00778-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-14-00778-CR

Victor R. MARTINEZ, Appellant

v.

The STATE of Texas, Appellee

From the 175th Judicial District Court, Bexar County, Texas Trial Court No. 2010CR5362 Honorable Mary D. Roman, Judge Presiding

PER CURIAM

Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Jason Pulliam, Justice

Delivered and Filed: January 28, 2015

DISMISSED

Pursuant to a written plea agreement, Defendant Victor R. Martinez entered a plea of guilty

to the indictment and was sentenced to twelve years’ confinement in the Institutional Division of

the Texas Department of Criminal Justice. 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

. . . .” Appellant filed a notice of appeal.

The clerk’s record contains a written plea bargain and the punishment assessed did not

exceed the punishment recommended by the prosecutor and agreed to by defendant; therefore, the 04-14-00778-CR

trial court’s certification accurately reflects that defendant’s case is a plea bargain case and

defendant does not have a 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, or (B) after getting the trial court's permission to

appeal.” Id. The clerk’s record does not contain a written motion ruled on before trial nor does it

indicate the trial court granted defendant permission to appeal. This court must dismiss an appeal

“if a certification that shows the defendant has the right of appeal has not been made a part of the

record.” TEX. R. APP. P. 25.2(d).

On December 17, 2014, 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 appellant 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, 2014,

Martinez’s appellate attorney filed a response to the court’s order providing “the undersigned

attorney has reviewed documents including the electronic clerk’s record of this case and can find

no right of appeal for Appellant.” Martinez’s attorney further conceded “this Court has no choice

but to dismiss the appeal.”

Accordingly, this appeal is dismissed.

DO NOT PUBLISH

-2-