Opinion
04-24-00693-CR
12-04-2024
Alberto HERNANDEZ, Jr., Appellant v. The STATE of Texas, Appellee
DO NOT PUBLISH
From the 81st Judicial District Court, Frio County, Texas Trial Court No. 23-05-00077CRF Honorable Jennifer Dillingham, Judge Presiding
Sitting: Irene Rios, Justice Beth Watkins, Justice Liza A. Rodriguez, Justice
MEMORANDUM OPINION
PER CURIAM
Pursuant to a plea-bargain agreement, appellant Alberto Hernandez, Jr. pled guilty to one count of indecency with a child by sexual contact and, in accordance with the terms of his plea-bargain agreement, was sentenced to eighteen years' imprisonment. On October 8, 2024, the trial court signed a certification of defendant's right to appeal stating "the defendant has waived the right of appeal" and this "is a plea-bargain case, and the defendant has NO right of appeal." See Tex. R. App. P. 25.2(a)(2). After Hernandez filed a notice of appeal, the trial court clerk sent copies of the certification and notice of appeal to this court. See id. 25.2(e). The clerk's record, which includes the trial court's 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, (B) after getting the trial court's permission to appeal, or (C) where the specific appeal is expressly authorized by statute." 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 Hernandez. 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 its permission to appeal. See id. Thus, the trial court's certification appears to accurately reflect that this is a plea-bargain case and Hernandez 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).
On October 21, 2024, we informed Hernandez that this appeal would be dismissed pursuant to Rule 25.2(d) of the Texas Rules of Appellate Procedure unless an amended trial court certification showing that Hernandez has 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, 177 (Tex. App.-San Antonio 2003, no pet.). To date, Hernandez has not responded to our order and no such amended trial court certification has been filed. Therefore, this appeal is dismissed pursuant to Rule 25.2(d) of the Texas Rules of Appellate Procedure.