Opinion
No. 04-03-00678-CR
Delivered and Filed: November 26, 2003. DO NOT PUBLISH.
From the 379th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CR-0275, Honorable Bert Richardson, Judge Presiding. DISMISSED
ALMA L. LóPEZ, Chief Justice, SANDEE BRYAN MARION, justice, and PHYLIS J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Pursuant to a plea bargain agreement, appellant, Erik Martinez, pled nolo contendere to assault of a public servant. On August 1, 2003, 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, 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 pro se notice of appeal in which he states he is appealing from a pre-trial motion. 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). Appellant notes the trial court did not grant him permission to appeal. The clerk's record contains a copy of a motion to withdraw the plea, but the motion was not ruled on by the trial court. 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 accurately 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 September 30, 2003, 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. No amended trial court certification has been filed; therefore, this appeal is dismissed. Appellant's motion to extend time to file a notice of appeal is DENIED.