Opinion
No. 04-05-00434-CR
Delivered and Filed: September 28, 2005. DO NOT PUBLISH.
Appeal from the 175th Judicial District Court, Bexar County, Texas, Trial Court No. 2005-CR-1349, Honorable Mary Román, Judge Presiding. Dismissed.
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
Johnny Chiles Johnson pleaded nolo contendere to a felony pursuant to a plea bargain agreement. As part of his plea-bargain, Johnson signed a separate "Waiver of Appeal" that states:
I understand that upon my plea of guilty or nolo contendere, where the punishment does not exceed that recommended by the prosecutor and agreed to by me, my right to appeal will be limited to only: (1) those matters that were raised by written motion filed and ruled on before trial, or (2) other matters on which the trial court gives me permission to appeal. I understand that I have this limited right to appeal. However, as part of my plea bargain agreement in this case, I knowingly and voluntarily waive my right to appeal under (1) and (2) in exchange for the prosecutor's recommendation, provided that the punishment assessed by the court does not exceed our agreement.The trial court imposed sentence in accordance with the agreement and signed a certificate stating that this "is a plea-bargain case, and the defendant has NO right of appeal" and "the defendant has waived the right of appeal." See Tex.R.App.P. 25.2(a)(2). Johnson timely filed a notice of appeal. 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). The clerk's record, which contains a written plea bargain agreement, establishes the punishment assessed by the court does not exceed the punishment recommended by the prosecutor and agreed to by the defendant. Ordinarily, "[i]n 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). However, a defendant may waive this limited right to appeal. See Willis v. State, 121 S.W.3d 400, 403 (Tex.Crim.App. 2003). When a valid waiver of appeal has been executed, a defendant may appeal only if the trial court later gives its express permission. Id.; Monreal v. State, 99 S.W.3d 615, 622 (Tex.Crim.App. 2003). The record does not reflect the trial court granted Johnson permission to appeal. The trial court's certification therefore appears to accurately reflect that this is a plea bargain case, Johnson does not have a right to appeal, and Johnson waived any limited 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 August 8, 2005, we gave Johnson notice that the appeal would be dismissed unless written permission to appeal and an amended certification showing Johnson has the right to appeal were made part of the appellate record by September 6, 2005. 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 (July 2, 2003, pet. filed) (not designated for publication). Neither written permission to appeal nor an amended certification showing Johnson has the right to appeal has been filed. Instead, counsel responded to our notice by filing a brief arguing Johnson's plea was not voluntary. We do not consider the brief. The appeal is dismissed. Tex.R.App.P. 25.2(d).
We also note that the clerk's record does not include any written motions that were ruled upon before trial.