Opinion
No. 14-11-00293-CR
Opinion filed May 17, 2011. DO NOT PUBLISH — Tex. R. App. P. 47.2(b).
On Appeal from the 208th District Court Harris County, Texas, Trial Court Cause No. 1238021.
Panel consists of Justices FROST, JAMISON, and McCALLY.
MEMORANDUM OPINION
Appellant entered a guilty plea to felony driving while intoxicated. In accordance with the terms of a plea bargain agreement with the State, the trial court sentenced appellant on April 15, 2010, to confinement for seven years in the Institutional Division of the Texas Department of Criminal Justice. Appellant filed a pro se notice of appeal. We dismiss the appeal. In a plea bargain case — that is, a case in which a defendant's plea was guilty 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.Tex. R. App. P. 25.2(a)(2). The trial court shall enter a certification of the defendant's right of appeal each time it enters a judgment of guilt or other appealable order. Id. In this case, the trial court signed a certification, but did not designate whether this was a plea bargain case or whether appellant had the right to appeal. An appellate court that has an appellate record is "obligated to review that record in ascertaining whether the certifications were defective." Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005). A certification is defective if it is correct in form but, "when compared with the record before the court, proves to be inaccurate." Id. at 614. When the record is incomplete, the appellate court should review "whatever record does exist that indicates that an appellant has the right to appeal." Greenwell v. Court of Appeals for Thirteenth Judicial Dist., 159 S.W.3d 645, 649 (Tex. Crim. App. 2005). In this case, the certification is incomplete, but the record reflects that appellant pleaded guilty and the punishment assessed did not exceed the punishment recommended by the prosecutor. The record contains no evidence that matters were raised by written motion and ruled on before trial, or that the trial court granted permission to appeal. Accordingly, we dismiss the appeal.
According to a letter from the Harris County District Clerk's office, notice of appeal was timely given April 28, 2010, but the document was misfiled and not submitted to the Criminal Appellate Section of the District Clerk's office until April 1, 2011.