Felix Lira v. The State of Texas--Appeal from 81st Judicial District Court of Wilson County

MEMORANDUM OPINION
No. 04-03-00674-CR
Felix LIRA,
Appellant
v.
The STATE of Texas,
Appellee
From the 81st Judicial District Court, Wilson County, Texas
Trial Court No. 00-07-143-CRW
Honorable Donna S. Rayes, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Paul W. Green, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: April 7, 2004

DISMISSED

Pursuant to a plea bargain agreement, appellant Felix Lira pled no contest to sexual assault of a child, a second degree felony. The trial court deferred adjudication of guilt and placed Lira on community supervision for ten years. On August 18, 2003, after Lira pled true to various violations of the terms of his community supervision, the trial court imposed sentence 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). After Lira timely filed a general 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 that 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 contain a written motion ruled on before trial nor does it indicate the trial court granted Lira permission to appeal. The trial court's certification therefore appears to accurately reflect that this is a plea bargain case and Lira does not have the 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 a part of the record." Tex. R. App. P. 25.2(d).

On November 18, 2003, we gave Felix Lira notice that the appeal would be dismissedunless an amended certification showing he has the right to appeal has been made part of the record by December 18, 2003. (1) See Tex. R. App. P. 25.2(d); 37.1; Daniels v. State, 110 S.W.3d 174, 177 (Tex. App.-San Antonio 2003, interlocutory order) (en banc). An amended certification showing Lira has the right to appeal has not been filed. We therefore dismiss this appeal. Tex. R. App. P. 25.2(d).

Paul W. Green, Justice

Do Not Publish

1. At the same time, this court ordered a supplemental clerk's record to determine whether Lira had received appointed counsel for the appeal. This court has verified that counsel was appointed to represent Lira on appeal and that counsel also received notice of the possible dismissal pursuant to Rule 25.2.