Opinion
No. 04-18-00940-CR
01-30-2019
Adrian Gilbert TORRES, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 2018CR9950W
Honorable Melisa C. Skinner, Judge Presiding PER CURIAM Sitting: Luz Elena D. Chapa, Justice Irene Rios Justice Beth Watkins, Justice DISMISSED
Appellant entered into a plea bargain with the State, pursuant to which he pled nolo contendere to intoxication manslaughter and pled true to a repeat offender enhancement allegation. The plea bargain contains 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 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). Torres timely filed a notice of appeal. The clerk's record, which includes the trial court's rule 25.2(a)(2) certification and a written plea bargain agreement, has been filed. See TEX. R. APP. P. 25.2(d).
The clerk's record 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, when a defendant waives this limited right to appeal, the defendant may appeal only if the trial court later gives its express permission. See Willis v. State, 121 S.W.3d 400, 403 (Tex. Crim. App. 2003); Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003). The clerk's record does not indicate the trial court gave Torres permission to appeal.
The trial court's certification therefore appears to accurately reflect that this is a plea bargain case, Torres does not have a right to appeal, and he waived any limited right to appeal. See Dears v. State, 154 S.W.3d 610 (Tex. Crim. App. 2005) (holding that court of appeals should review clerk's record to determine whether trial court's certification is accurate).
On December 19, 2018, we gave Torres notice that the appeal would be dismissed unless written consent to appeal and an amended certification showing he has the right to appeal were signed by the trial judge and made part of the appellate record by January 9, 2019. 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). We have received no response to our order and neither written permission to appeal nor an amended certification showing Torres has the right to appeal has been filed. We therefore dismiss this appeal.
PER CURIAM DO NOT PUBLISH