Rene Gutierrez v. The State of Texas--Appeal from 186th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00378-CR
Rene GUTIERREZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2002CR4098
Honorable Maria Teresa Herr, Judge Presiding

PER CURIAM

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: August 20, 2003

DISMISSED

Pursuant to a plea-bargain agreement, Rene Gutierrez pled nolo contendere to evading arrest or detention. The trial court imposed sentence on Gutierrez and signed a certificate 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). After Gutierrez timely filed a pro se notice of appeal, the trial court clerk sent copies of the certification and notice of appeal to this court. See id. 25.2(e). The clerk's record, which includes the trial court's rule 25.2(a)(2) certification, has been filed. See id. 25.2(d).

"In 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). The clerk's record, which contains a written plea bargain, establishes the punishment assessed by the court does not exceed the punishment recommended by the prosecutor and agreed to by the defendant. See id. 25.2(a)(2). The clerk's record does not include a written motion filed and ruled upon before trial; nor does it indicate that the trial court gave her permission to appeal. The trial court's certification, therefore, appears to accurately reflect that this is a plea-bargain case and that Gutierrez does not have a right to appeal. We must dismiss an appeal "if a certification that shows the defendant has the right of appeal has not been made part of the record." Id. 25.2(d).

We, therefore, warned Gutierrez that this appeal would be dismissed pursuant to Texas Rule of Appellate Procedure 25.2(d), unless an amended trial court certification showing that he had the right to appeal was made part of the appellate record by July 9, 2003. See Tex. R. App. P. 25.2(d), 37.1; Daniels v. State, No. 04-03-00176-CR, 2003 WL 21011277 (Tex. App.-San Antonio May 7, 2003, order). No such amended trial court certification has been filed. This appeal is, therefore, dismissed pursuant to rule 25.2(d).

PER CURIAM

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