Raul G. Perez v. The State of Texas--Appeal from 290th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00713-CR
Raul G. PEREZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 2002CR3951
Honorable Sharon MacRae, Judge Presiding

PER CURIAM

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: December 10, 2003

DISMISSED

Pursuant to a plea-bargain agreement, Raul G. Perez pled nolo contendere to driving while intoxicated and was sentenced to three years imprisonment and a fine of $1000 in accordance with the terms of his plea-bargain agreement. On August 26, 2003, the trial court signed a certification of defendant's right to appeal 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 Perez timely filed a 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 the written plea-bargain agreement, 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 its permission to appeal. The trial court's certification, therefore, appears to accurately reflect that this is a plea-bargain case and that Perez 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 Perez in our order of October 22, 2003 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 November 21, 2003. See Tex. R. App. P. 25.2(d), 37.1; Daniels v. State, 110 S.W.3d 174 (Tex. App.--San Antonio 2003, order). No such amended trial court certification has been filed. Perez did, however, file a "Motion to Request Reconsideration of Court's Order and Ruling of October 22, 2003." In this motion, Perez argues that rule 25.2(d) does not apply, because he entered into his plea-bargain agreement in 2002. (1) Although Perez did enter into his plea-bargain agreement in 2002, his sentenced was not imposed until August 26, 2003. The comment to rule 25.2 states that the trial court should certify the defendant's right of appeal "at the time the judgment or other appealable order is entered." Tex. R. App. P. 25.2 cmt. Judgment in this case was entered on August 26, 2003, after the effective date of the amendment to rule 25.2. The trial court was, therefore, required to sign a certification of defendant's right to appeal pursuant to rule 25.2. As such, rule 25.2 applies in this case. We deny Perez's motion. (2)

And, because the trial court's certification does not indicate that Perez has the right to appeal, we dismiss this appeal. Tex. R. App. P. 25.2(d).

PER CURIAM

Do not publish

1. The amendments to rule 25.2 became effective January 1, 2003.

2. Perez also contends that rule 25.2(d) is in conflict with his right to appeal as protected by the Constitution's Due Process and Equal Protection Clauses. The United States Constitution, however, does not require a state to provide appellate courts or a right to appellate review of criminal convictions. Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992) (citing McKane v. Durston, 153 U.S. 684, 687-88 (1894)). As a result, a state may limit or even deny the right to appeal a criminal conviction. Id. Similarly, nothing in the Texas Constitution guarantees the right to appeal a criminal conviction; that right is provided only by the legislature. Id. Perez's argument is, therefore, without merit. Perez also argues that he did not voluntarily enter his plea. The voluntariness of plea, however, may not be raised on appeal from a plea-bargained, felony conviction. Cooper v. State, 45 S.W.3d 77, 83 (Tex. Crim. App. 2001).