Opinion
No. 04-12-00737-CR
01-23-2013
Jose Luis GUTIERREZ, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2011CR4333
Honorable Philip A. Kazen, Jr., Judge Presiding
PER CURIAM Sitting: Karen Angelini, Justice
Sandee Bryan Marion, Justice
Marialyn Barnard, Justice
DISMISSED
Pursuant to a plea-bargain agreement, Jose Luis Gutierrez pled nolo contendere to possession of a controlled substance with intent to deliver and was sentenced to ten years imprisonment in accordance with the terms of his plea-bargain agreement. On October 15, 2012, 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." See TEX. R. APP. P. 25.2(a)(2). After Gutierrez filed a notice of appeal, the trial court clerk sent copies of the certification and the notice of appeal to this court. See id. 25.2(e). The clerk's record, which includes the trial court's Rule 25.2(a)(2) certification, has been filed. See id. 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." Id. 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 id. The clerk's record does not include a written motion filed and ruled upon before trial; nor does it indicate that the trial court gave Gutierrez permission to appeal. See id. The trial court's certification, therefore, appears to accurately reflect that this is a plea-bargain case and that Gutierrez does not have a right to appeal. We must dismiss an appeal "if a certification that shows the defendant has the right of appeal has not been made part of the record." Id. 25.2(d).
We, therefore, warned Gutierrez that this appeal would be dismissed pursuant to Texas Rule of Appellate Procedure 25.2(d), unless an amended trial court certification showing that Gutierrez had the right to appeal was made part of the appellate record. See TEX. R. APP. P. 25.2(d), 37.1; Daniels v. State, 110 S.W.3d 174 (Tex. App.—San Antonio 2003, order). No such amended trial court certification has been filed. This appeal is, therefore, dismissed pursuant to Rule 25.2(d).
PER CURIAM DO NOT PUBLISH