Corina Sifuentes v. The State of Texas--Appeal from 243rd District Court of El Paso County

Becker v. State COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
)

CORINA SIFUENTES,

)
No. 08-03-00146-CR)

Appellant,

)
Appeal from)

v.

)
243rd District Court)

THE STATE OF TEXAS,

)
of El Paso County, Texas)

Appellee.

)
(TC# 20020D03831)
MEMORANDUM OPINION

Corina Sifuentes attempts to appeal a conviction for assault on a public servant. Finding that Appellant has no right of appeal, we dismiss the appeal.

Rule 25.2(a)(2) governs the defendant's right to appeal in a criminal case:

 

A defendant in a criminal case has the right of appeal under Code of Criminal Procedure article 44.02 and these rules. The trial court shall enter a certification of the defendant's right of appeal in every case in which it enters a judgment of guilt or other appealable order. (1) In a plea bargain case--that is, a case in which the defendant's plea of 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.

 

Tex.R.App.P. 25.2(a)(2).

 

Appellant filed a timely notice of appeal, including the trial court's certification of the defendant's right to appeal as required by Rules 25.2(a)(2) and 25.2(d). The trial court's certification reflects that the appeal "is in a plea-bargain case, and the defendant has NO right of appeal." On April 4, 2003, the Clerk's Office notified Appellant's counsel that the certification reflects that Appellant has no right of appeal in this case and requested a response. In her letter brief, Appellant admits that she entered a negotiated plea of guilty and was sentenced according to the terms of the plea bargain. However, she seeks to appeal the denial of her motion for new trial based upon an allegation of newly discovered evidence. (2) The trial court has denied permission to appeal this issue. Appellant requests that this Court grant her permission to appeal.

With respect to Appellant's request that this Court grant her permission to appeal, the Legislature has determined that the authority and discretion to grant permission to appeal rests solely in the trial court. Article 44.02 of the Texas Code of Criminal Procedure provides:

A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed, provided, however, before the defendant who has been convicted upon either his plea of guilty or plea of nolo contendere before the court and the court, upon the election of the defendant, assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney may prosecute his appeal, he must have permission of the trial court, except on those matters which have been raised by written motion filed prior to trial. This article in no way affects appeals pursuant to Article 44.17 of this chapter. [Emphasis added].

 

Tex.Code Crim.Proc.Ann. art. 44.02 (Vernon 1979).

 

Because the trial court has denied Appellant permission to appeal this issue, Appellant has no right of appeal. Accordingly, the appeal is dismissed.

 

May 15, 2003

ANN CRAWFORD McCLURE, Justice

 

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

 

(Do Not Publish)

1. Rule 25.2(d) requires that the trial court certify whether the defendant has a right of appeal under Rule 25.2(a)(2). Tex.R.App.P. 25.2(d).

2. Appellant alleges that she did not learn until after her guilty plea that the police officer complainants were disciplined in connection with the incident involving Appellant. Appellant had previously requested the internal affairs reports but entered her guilty plea before receiving them.