David S. Alvarado v. The State of Texas--Appeal from 227th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00540-CR
David S. ALVARADO,
Appellant
v.
The STATE of Texas,
Appellee

From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CR-5801
Honorable Janna K. Whatley, Judge Presiding (1)

PER CURIAM

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: October 15, 2003

APPEAL DISMISSED

David S. Alvarado entered into a plea bargain with the State whereby he agreed to plead nolo contendere to burglary of a habitation with intent to commit assault and the State agreed to recommend a cap on punishment of thirty years incarceration and a $1,000 fine. Alvarado also agreed to pay restitution. Alvarado signed a judicial confession to the offense and to the enhancement allegation. The trial court accepted the plea, found Alvarado guilty as a repeat offender, sentenced him to thirty years imprisonment in the Texas Department of Criminal Justice - Institutional Division, fined him $1,000, and ordered restitution. The trial court imposed sentence on July 7, 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 Alvarado 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).

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. 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, as part of his plea bargain, Alvarado signed a waiver of this limited right of appeal. He therefore may not appeal without the consent of the trial court. See Monreal v. State, 99 S.W.3d 615 (Tex. Crim. App. 2003). The clerk's record does not indicate the trial court gave Alvarado permission or consent to appeal. (2) The trial court's certification therefore appears to accurately reflect that this is a plea bargain case and Alvarado 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 September 9, 2003, we gave Alvarado notice that the appeal would be dismissed unless an amended trial court certification showing he has the right to appeal were made part of the appellate record within thirty days. 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 amended certification showing Alvarado has the right to appeal has been filed. Instead, counsel responded to our notice by filing a brief and motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), and by filing a pro se brief from appellant. We do not consider either the Anders brief or the pro se brief. The motion to withdraw and the appeal are dismissed. Tex. R. App. P. 25.2(d).

PER CURIAM

Do not publish

1. Sitting by assignment.

2. We also note that the clerk's record does not include any written motions that were ruled upon before trial.