Opinion
No. 04-16-00670-CR
06-28-2017
MEMORANDUM OPINION
From the 79th Judicial District Court, Jim Wells County, Texas
Trial Court No. 15-08-14189-CR
Honorable Richard C. Terrell, Judge Presiding PER CURIAM Sitting: Marialyn Barnard, Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice APPEAL DISMISSED
Pursuant to a plea bargain agreement entitled Plea Memorandum, appellant Noe Contreras pled guilty to two counts of indecency with a child. As part of his plea-bargain, appellant initialed section 12 of the Plea Memorandum, which is entitled "Waiver of Right to Motion for New Trial and Appeal." The trial court imposed a sentence in accordance with the Plea Memorandum and signed a certificate stating "the defendant has waived the right of appeal." See TEX. R. APP. P. 25.2(a)(2). After appellant timely filed a notice of appeal, a copy of the clerk's record, as well as supplements thereto, were filed. The clerk's record included a copy of the Plea Memorandum and the trial court's Rule 25.2(a)(2) certification. See TEX. R. APP. P. 25.2(d).
The clerk's record establishes the punishment assessed by the court does not exceed the punishment recommended by the prosecutor and agreed to by the defendant. See TEX. R. APP. P. 25.2(a)(2). The record also appears to support the trial court's certification that states appellant waived his right of 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). 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." TEX. R. APP. P. 25.2(d).
In addition to the certification contained in the supplemental clerk's record, the record also includes the reporter's record for the open plea and punishment phase of trial. The reporter's record reflects that during that phase, the court asked appellant whether he understood that he waived his right to appeal when he signed his initials next to Section 12 of the Plea Memorandum he signed. Appellant responded, "No, sir, I don't." The court proceeded to read section 12 to appellant and again asked whether he understood it. Appellant responded, "Yes."
Accordingly, on May 3, 2017, we gave appellant notice that the appeal would be dismissed unless written consent to appeal and an amended certification showing appellant has the right to appeal was made part of the appellate record by June 2, 2017. See TEX. R. APP. P. 25.2(d); 37.1; Daniels v. State, 110 S.W.3d 174 (Tex. App.—San Antonio 2003, order), disp. on merits, No. 04-03-00176-CR, 2003 WL 21508347 (Tex. App.—San Antonio July 2, 2003, pet. ref'd) (not designated for publication). Neither written permission to appeal nor an amended certification showing appellant has the right to appeal has been filed. We therefore dismiss this appeal.
PER CURIAM Do Not Publish