Opinion
No. 08-03-00505-CR.
February 12, 2004. DO NOT PUBLISH.
Appeal from the 243rd District Court of El Paso County, Texas, TC# 20030D03273.
Before Panel No. 3, BARAJAS, C.J., LARSEN, and CHEW, JJ.
MEMORANDUM OPINION
Appellant Raymundo Alvarez attempts to appeal a conviction for the second degree felony offense of robbery. Upon Appellant's guilty plea, the trial court found Appellant guilty of the offense as charged and sentenced Appellant to 8 years' imprisonment, probated to 8 years' of community supervision. Finding that Appellant has no right of appeal, we dismiss the appeal. Rule 25.2(a)(2) governs the defendant's right to appeal in a criminal case:
A defendant in a criminal case has the right of appeal under Code of Criminal Procedure article 44.02 and these rules. The trial court shall enter a certification of the defendant's right of appeal in every case in which it enters a judgment of guilt or other appealable order. In a plea bargain case — that is, a case in which the defendant's plea is guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant — 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.TEX.R.APP.P. 25.2(a)(2). Appellant filed a timely notice of appeal and filed the trial court's certification of the defendant's right to appeal as required by Rules 25.2(a)(2) and 25.2(d). The trial court's certification reflects that the appeal "is a plea-bargain case, and the defendant has NO right of appeal." On January 13, 2004, the clerk of this Court notified Appellant's counsel that the certification reflects that Appellant has no right of appeal in this case and requested a response. In his letter brief, Appellant admits that he entered a negotiated plea of guilty and was sentenced according to the terms of the plea agreement. However, he contends his trial counsel informed him that he was pleading guilty to a misdemeanor offense and only a few days later after speaking to several individuals, did he realize that he had pled guilty to a felony. Appellant now wishes to withdraw his plea of guilty. In this case, Appellant filed a Motion for New Trial on this issue, which the trial court denied. Appellant also filed a Motion for Permission to Appeal, which the trial court implicitly denied through its certification filed later that same day, in which it found Appellant had no right of appeal. Appellant requests that this Court grant him permission to appeal. The Legislature has determined that the authority and discretion to grant permission to appeal rests solely in the trial court. Article 44.02 of the Texas Code of Criminal Procedure provides:
A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed, provided, however, before the defendant who has been convicted upon either his plea of guilty or plea of nolo contendere before the court and the court, upon the election of the defendant, assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney may prosecute his appeal, he must have permission of the trial court, except on those matters which have been raised by written motion filed prior to trial. This article in no way affects appeals pursuant to Article 44.17 of this chapter.TEX. CODE CRIM.PROC.ANN. art. 44.02 (Vernon 1979). Because the trial court has denied Appellant permission to appeal this issue, Appellant has no right of appeal. Accordingly, the appeal is dismissed.
Appellant has filed with this Court the reporter's record of the plea of guilty proceeding in the trial court. Exhibit 1 indicates that Appellant signed the Court's notice of his rights, written admonishments, waiver of rights, judicial confession, and plea agreement and initialed the paragraph that explained he was pleading guilty to the second degree felony offense of robbery.