Opinion
No. 04-03-00176-CR
Delivered and Filed: July 2, 2003 Do not publish
Appeal From the 227th Judicial District Court, Bexar County, Texas, Trial Court No. 2002-CR-1905A, Honorable Philip A. Kazen, Jr., Judge Presiding. APPEAL DISMISSED
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
Pursuant to a plea bargain agreement, Tommy Ben Daniels pled guilty to aggravated robbery and true to an enhancement offense. On February 18, 2003, the trial court imposed sentence and signed a certificate 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 Daniels timely filed a pro se general 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). Daniels later filed a second notice of appeal; in this notice of appeal, he concedes the plea bargain agreement was followed by the court and indicates the bases for his appeal are "jurisdictional defect" and "permission to appeal." However, the second notice of appeal does not indicate that permission to appeal was granted; rather, as set forth in the attached letter, Daniels was asking the court to grant permission to appeal because his plea was involuntary and his trial counsel was ineffective. The clerk's record, which includes the trial court's Rule 25.2(a)(2) certification, has been filed. See Tex.R.App.P. 25.2(d). "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." Tex.R.App.P. 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 the defendant. See Tex.R.App.P. 25.2(a)(2). The clerk's record does not include a written motion filed and ruled upon before trial; nor does it indicate the trial court gave Daniels permission to appeal. The reporter's record indicates the trial court denied permission to appeal. The trial court's certification therefore appears to accurately reflect that this is a plea bargain case and Daniels does not have a right to appeal. 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). On May 7, 2003, we gave Daniels notice that the appeal would be dismissed unless an amended trial court certification showing he has the right to appeal has been made part of the appellate record by June 9, 2003. See Tex.R.App.P. 25.2(d); 37.1; Daniels v. State, No. 04-03-00176-CR, 2003 WL 21011277 (Tex.App.-San Antonio May 7, 2003, order). An amended certification showing Daniels has the right to appeal has not been filed. We therefore dismiss this appeal. Tex.R.App.P. 25.2(d).