Joseph Walker v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00923-CR
Joseph WALKER,
Appellant
v.
The STATE of Texas,
Appellee

From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CR-8400
Honorable Mary Roman, Judge Presiding

PER CURIAM

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: March 3, 2004

DISMISSED

Joseph Walker pled guilty to aggravated robbery with a deadly weapon pursuant to a plea bargain agreement. The trial court sentenced Walker to eighteen years in the Texas Department of Criminal Justice - Institutional Division, and fined Walker $1,500. The trial court signed a certificate stating that this "is a plea-bargain case, and the defendant has NO right of appeal" and "the defendant has waived the right of appeal." See Tex. R. App. P. 25.2(a)(2). Walker timely filed a notice of appeal in which he states the plea bargain was not followed and that the trial court gave him permission to appeal. 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 contains a written plea bargain, and it appears, contrary to the recitation in Walker's notice of appeal, that the trial court complied with the agreement by assessing punishment that did 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 include a written motion filed by Walker and ruled upon before trial; and nothing in the clerk's record indicates the trial court gave Walker permission to appeal. Moreover, as part of the plea bargain, Walker signed a written waiver of any right to appeal. The trial court's certification therefore appears to accurately reflect that this is a plea bargain case and Walker does not have a right to appeal, and that Walker waived his 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 January 13, 2004, this court gave Walker 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 February 12, 2004. See Tex. R. App. P. 25.2(d); 37.1; Daniels v. State, 110 S.W.3d 174 (Tex. App.-San Antonio 2003, order), disp. on merits, No. 04-03-00176-CR, 2003 WL 21508347 (July 2, 2003, pet. filed) (not designated for publication). An amended certification showing Walker has the right to appeal has not been filed. We therefore dismiss this appeal. Tex. R. App. P. 25.2(d).

PER CURIAM

Do not publish