Manuel Michael Garcia v. The State of Texas--Appeal from 227th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00916-CR
Manuel Michael GARCIA,
Appellant
v.
The STATE of Texas,
Appellee

From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2003-CR-7778
Honorable Philip A. Kazen, Jr., Judge Presiding

PER CURIAM

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: March 10, 2004

DISMISSED

Manuel Michael Garcia pled guilty to an offense pursuant to a plea bargain agreement. The trial court imposed sentence in accordance with the agreement and 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). Garcia timely filed a pro se notice of 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).

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, Garcia 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 Garcia permission or consent to appeal. (1) The trial court's certification therefore appears to accurately reflect that this is a plea bargain case and Garcia does not have a right to appeal and that Garcia waived any limited 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 20, 2004, we gave Garcia 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 19, 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 Garcia 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

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