Opinion
No. 04-03-00780-CR.
Delivered and Filed: February 4, 2004. DO NOT PUBLISH.
On Appeal from the 399th Judicial District Court, Bexar County, Texas, Trial Court No. 2002-CR-6077, Honorable Olin Strauss, Judge Presiding. Dismissed.
Sitting: PAUL W. GREEN, Justice, SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice.
MEMORANDUM OPINION
Appellant Gilbert Jose Martinez pled guilty to driving while intoxicated, a third-degree misdemeanor, and was sentenced within the terms of a plea bargain. On September 23, 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). After Martinez timely filed a notice of appeal, the clerk sent copies of the certification and notice of appeal to this court. See Tex.R.App.P. 25.2(e). 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 that 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 contain a written motion ruled on before trial nor does it indicate the trial court granted Martinez permission to appeal. The trial court's certification therefore appears to accurately reflect that this is a plea bargain case and Martinez does not have the 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 a part of the record." Tex.R.App.P. 25.2(d). On November 26, 2003, 2003, we gave Martinez notice that the appeal would be dismissed unless an amended certification showing he has the right to appeal has been made part of the record by December 26, 2003. See Tex.R.App.P. 25.2(d); 37.1; Daniels v. State, 110 S.W.3d 174, 177 (Tex.App.-San Antonio 2003, interlocutory order) (en banc). An amended certification showing Gilbert Jose Martinez has the right to appeal has not been filed. We therefore dismiss this appeal. Tex.R.App.P. 25.2(d).
Appellant's notice of appeal states he is appealing a jurisdictional defect; however, he offers no explanation of what the defect might be. No jurisdictional defect appears on the face of the clerk's record.