Mark Anthony Martinez v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County

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MEMORANDUM OPINION
No. 04-03-00614-CR
Mark Anthony MARTINEZ,
Appellant
v.
The STATE of Texas,
Appellee

From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CR-6795
Honorable Mark R. Luitjen, Judge Presiding

PER CURIAM

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: October 1, 2003

APPEAL DISMISSED

Pursuant to a plea bargain agreement, Mark Anthony Martinez pled nolo contendere to possession of one to four grams of a penalty group 1 controlled substance. The trial court imposed sentence on June 5, 2003, 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 Martinez timely filed a notice of appeal, the clerk sent copies of the certification and notice of appeal to this court. See Tex. R. App. P. 25.2(e). The clerk's record, which includes the trial court's Rule 25.2(a)(2) certification, has been filed. See Tex. R. App. P. 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 Tex. R. App. P. 25.2(a)(2). The clerk's record does not indicate the trial court gave Martinez permission to appeal. The trial court's certification therefore appears to accurately reflect that this is a plea bargain case and appellant does not have a 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 August 21, 2003, we gave Martinez notice that the appeal would be dismissed unless an amended trial court certification showing he has the right to appeal has been made part of the appellate record by September 22, 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).

An amended certification showing Martinez has the right to appeal has not been filed. Instead, Martinez filed a response in which he states that he is not appealing his conviction and contends he is not prohibited from appealing "issues related directly to the process in which [he] was sentenced." Rule 25.2(a)(2) does not distinguish between issues related to conviction and those related to punishment. A defendant "in a plea bargain case" may only appeal matters raised by written motion and ruled on pretrial or if the trial court grants permission to appeal. See Tex. R. App. P. 25.2(a)(2). Because the trial court has not certified that Martinez has the right of appeal, we dismiss this appeal. Tex. R. App. P. 25.2(d).

PER CURIAM

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