Opinion
No. 4-05-00644-CR
Delivered and Filed: January 18, 2006. DO NOT PUBLISH.
Appeal from the 290th Judicial District Court, Bexar County, Texas, Trial Court No. 2005-CR-5224W, Honorable Sharon MacRae, Judge Presiding. Dismissed.
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
Armando Rosas pleaded nolo contendere to robbery pursuant to a plea bargain agreement. As part of his plea-bargain, Rosas 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). Rosas timely filed a notice of appeal. The clerk's record, including 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, as part of his plea bargain, Rosas signed a waiver of this limited right of appeal. He therefore may not appeal without the consent of the trial court. See Willis v. State, 121 S.W.3d 400, 403 (Tex.Crim.App. 2003) Monreal v. State, 99 S.W.3d 615 (Tex.Crim.App. 2003). The clerk's record reflects the trial court denied permission to appeal. The trial court's certification therefore appears to accurately reflect that this is a plea bargain case, Rosas does not have a right to appeal, and he 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 November 29, 2005, we gave Rosas notice that the appeal would be dismissed unless written consent to appeal and an amended certification showing Rosas has the right to appeal were signed by the trial judge and made part of the appellate record by December 29, 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. ref'd) (not designated for publication). Neither written permission to appeal nor an amended certification showing Rosas has the right to appeal has been filed. We therefore dismiss this appeal. 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.