Opinion
04-24-00748-CR
12-13-2024
Jose A. RAMOS, Appellant v. The STATE of Texas, Appellee
From the 290th Judicial District Court, Bexar County, Texas Trial Court No. 2024CR1157 Honorable Jennifer Pena, Judge Presiding
ORDER
Luz Elena D. Chapa, Justice
Pursuant to a plea bargain, appellant pleaded nolo contendere to two felonies of indecency with a child. The trial court suspended his sentence of six years, placing him on community supervision on August 14, 2024. The trial court, at that time, signed a certification stating this "is a plea-bargain case, and the defendant has NO right of appeal." See TEX. R. APP. P. 25.2(a)(2). On September 13, 2024, appellant filed a motion for new trial. The trial court denied the motion on October 25, 2024. On November 1, 2024, appellant filed his notice of appeal through retained counsel. The notice of appeal provides defendant seeks to appeal "the trial court's denial of his motion for new trial." The trial court, thereafter, signed another certification stating this "is a plea-bargain case, and the defendant has NO right of appeal." See TEX. R. APP. P. 25.2(a)(2).
As a general rule, a criminal defendant's right of appeal is limited to an appeal from a final judgment of conviction or other appealable order. See TEX. R. APP. P. 25.2(a)(2); TEX. CODE CRIM. PROC. art. 44.02; Abbott v. State, 271 S.W.3d 694, 696-07 (Tex. Crim. App. 2008) (standard for determining jurisdiction is not whether appeal is precluded by law but whether appeal is authorized by law); State v. Sellers, 790 S.W.2d 316, 321 n.4 (Tex. Crim. App. 1990) ("A defendant's general right to appeal under [article 44.02] and its predecessors has always been limited to appeal from a 'final judgment,' though the statute does not contain this limitation on its face."); cf. TEX. CoDE CRIM. PRoC. art. 44.01(a)(1) (providing state may appeal dismissal of indictment).
"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." TEX. R. APP. P. 25.2(a)(2). 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. R. 25.2(d).
Here, the clerk's record establishes the punishment assessed by the trial court does not exceed the punishment recommended by the prosecutor and agreed to by Ramos. It also does not include a written motion filed and ruled upon before trial; nor does it indicate the trial court gave Ramos permission to appeal. Thus, the trial court's certification appears to accurately reflect this is a plea-bargain case, and Ramos does not have a right to appeal. See id. R. 25.2; Dears v. State, 154 S.W.3d 610 (Tex. Crim. App. 2005) (holding court of appeals should review clerk's record to determine whether trial court's certification is accurate). In addition, the denial of a motion for new trial is not a separately appealable order. See Graves v. State, No. 14-05-00034-CR, 2005 WL 309977, at *1 (Tex. App.-Houston [14th Dist.] Feb. 10, 2005, pet. ref'd) (mem. op., not designated for publication). And even if the denial of a motion for new trial were an appealable order, it would not be appealable in a plea-bargained case without the trial court's permission. See TEX. R. APP. P. 25.2(a)(2).
Accordingly, Ramos is given notice this appeal will be dismissed pursuant to Texas Rule of Appellate Procedure 25.2(d) unless an amended certification showing he has the right to appeal is made part of the appellate record by January 13, 2025. See TEX. R. APP. P. 25.2(d), 37.1; Daniels v. State, 110 S.W.3d 174, 176 (Tex. App.-San Antonio 2003, order), disp. on merits, No. 04-03-00176-CR, 2003 WL 21508347 (July 2, 2003, pet. ref'd) (not designated for publication). If a supplemental clerk's record is required to show appellant has the right to appeal, appellant must request a supplemental record from the trial court clerk and file a copy of the request with this court. If appellant fails to satisfactorily respond to this order within the time provided, the appeal will be dismissed.
We order all appellate deadlines are suspended until further order of the court. We further order the clerk of this court to serve copies of this order on the attorneys of record and the court reporter.