Opinion
No. 04-17-00039-CR
06-28-2017
MEMORANDUM OPINION
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 2014CR2993
Honorable Lorina I. Rummel, Judge Presiding PER CURIAM Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice DISMISSED
Pursuant to a plea-bargain agreement, Michael Rodriguez pled nolo contendere to aggravated robbery and was sentenced to twenty-five years in prison in accordance with the terms of the plea-bargain agreement. 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). "In a plea bargain case—that is, a case in which a defendant's plea was guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant—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. An appellate court must dismiss an appeal "if a certification that showing that the defendant has the right of appeal has not been made part of the record." Id. 25.2(d).
Here, the record does not show that the trial court gave Rodriguez permission to appeal or that Rodriguez's punishment exceeded the punishment recommended by the prosecutor and agreed to by Rodriguez. Although the record shows that Rodriguez filed a pretrial motion that was ruled on prior to trial, it also shows that Rodriguez signed a waiver of appeal, in which he waived his right to appeal motions that were filed and ruled on before trial. The waiver is also signed by Rodriguez's counsel.
The waiver states:
WAIVER OF APPEAL
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.
We informed Rodriguez that this appeal would be dismissed pursuant to Texas Rule of Appellate Procedure 25.2(d), unless an amended trial court certification showing that Rodriguez 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 amended trial court certification has been filed. However, Rodriguez has filed a response to our order, asserting that the trial court's certification is defective because the trial court mischaracterized Rodriguez's waiver of appeal at the plea hearing. Rodriguez urges us to order the trial court to file an amended certification.
After considering the entire record, we cannot say that the trial court's characterization of Rodriguez's waiver at the plea hearing rendered the waiver invalid. "A valid waiver of the right of appeal is one that is made is made voluntarily, knowingly, and intelligently." Jones v. State, 488 S.W.3d 801, 805 (Tex. Crim. App. 2016). The record shows that Rodriguez and his counsel signed a waiver in which Rodriguez clearly waived, as part of the plea-bargain agreement, the right to appeal matters that were raised by written motion filed and ruled on before trial. At the plea hearing, Rodriguez confirmed that he had reviewed the waiver with his counsel. Additionally, at sentencing, Rodriguez and his counsel signed the trial court's certification stating that this is a plea-bargain case and Rodriguez has no right of appeal.
At the plea hearing, the following exchange took place:
The Court: Okay. Then I will accept these admonishments and I'm going to make them part of the record at this time.(emphasis added).
Sir, the last page is the plea bargain page. And before I go over the terms of the plea bargain, I'm going to talk about the Waiver of Appeal. Do you understand, sir, that this Court does not have to follow the plea bargain?
Rodriguez: Yes.
The Court: If the court does not follow the plea bargain, the Court must give you permission to take back your plea. Nothing that happens in court today can be held against you. In other words, you can start all over. Do you understand that?
Rodriguez: Yes.
The Court: However, if the Court does follow the agreement, you're waiving or giving up the right to appeal unless the Court grants permission or unless there were pretrial matters already ruled upon. Are you aware of that as well?
Rodriguez: Yes.
The Court: Okay. And that information is under the Waiver of Appeal portion. I've gone over it with you and you said you went over it with your attorney as well, correct?
Rodriguez: Yes.
We conclude the trial court's certification that Rodriguez has no right of appeal is consistent with the record. See id. ("An appellate court is obligated to review the record to determine if the certification is contrary to the record and therefore defective."). We, therefore, dismiss this appeal. See TEX. R. APP. P. 25.2(d).
PER CURIAM DO NOT PUBLISH