Sergio Cesar Olvera v. The State of Texas--Appeal from 248th District Court of Harris County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

SERGIO CESAR OLVERA, )

) No. 08-04-00189-CR

Appellant, )

) Appeal from the

v. )

) 248th District Court

THE STATE OF TEXAS, )

) of Harris County, Texas

Appellee. )

) (TC# 954983)

)

MEMORANDUM OPINION

Sergio Cesar Olvera attempts to appeal a judgment revoking community supervision. On July 31, 2003, upon Appellant=s guilty plea, Appellant was convicted of driving while intoxicated, third offense and sentenced to 3 years= confinement, probated to 3 years= of community supervision. On May 3, 2004, the State filed a motion to revoke community supervision. On May 12, 2004, Appellant pled true to the State=s motion, and in accordance with his plea agreement, the trial court sentenced Appellant to 2 years= imprisonment in the Institutional Division of the Texas Department of Criminal Justice. Finding that Appellant has no right of appeal, we dismiss the appeal.

Rule 25.2(a)(2) governs the defendant=s right to appeal in a criminal case:

A defendant in a criminal case has the right of appeal under Code of Criminal Procedure article 44.02 and these rules. The trial court shall enter a certification of the defendant=s right of appeal in every case in which it enters a judgment of guilt or other appealable order.[1] In a plea bargain case--that is, a case in which the defendant=s plea of guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant--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).

On May 26, 2004, Appellant filed his pro se notice of appeal. On July 20, 2004, this clerk=s office notified Appellant that the trial court has indicated in the court=s certification that this is a plea-bargain case and Appellant has no right of appeal. The record supports the trial court=s certification.

Article 44.02 of the Texas Code of Criminal Procedure provides:

A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed, provided, however, before the defendant who has been convicted upon either his plea of guilty or plea of nolo contendere before the court and the court, upon the election of the defendant, assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney may prosecute his appeal, he must have permission of the trial court, except on those matters which have been raised by written motion filed prior to trial. This article in no way affects appeals pursuant to Article 44.17 of this chapter.

Tex.Code Crim.Proc.Ann. art. 44.02 (Vernon 1979).

Because the trial court did not give Appellant permission to appeal, Appellant has no right of appeal. Accordingly, the appeal is dismissed.

September 2, 2004

DAVID WELLINGTON CHEW, Justice

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.

(Do Not Publish)

[1] Rule 25.2(d) requires that the trial court certify whether the defendant has a right of appeal under Rule 25.2(a)(2). See Tex.R.App.P. 25.2(d).