Daniel Rodriguez v. The State of Texas--Appeal from 187th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-04-00177-CR
Daniel RODRIGUEZ,
Appellant
v.
STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CR-6099
Honorable Raymond Angelini, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Paul W. Green, Justice

Sarah B. Duncan, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: May 26, 2004

DISMISSED

Pursuant to a plea bargain agreement, Daniel Rodriguez pled nolo contendere to driving while intoxicated (habitual). On February 18, 2004, the trial court imposed sentence and signed a certification of defendant's right to appeal. See Tex. R. App. P. 25.2(a). After Rodriguez 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). Apparently through an oversight, the certification did not specify whether Rodriguez had a right to appeal; therefore, on April 28, 2004, this court remanded to the trial court for an amended certification. Our order stated that "[u]nless the amended trial court certification shows that Rodriguez has the right of appeal, this appeal will be dismissed without further notice pursuant to Rule 25.2(d).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)." The supplemental clerk's record, which includes the trial court's amended Rule 25.2(a)(2) certification, has been filed. See Tex. R. App. P. 25.2(d). The amended certification states that this "is a plea-bargain case, and the defendant has NO right of appeal." See Tex. R. App. P. 25.2(a).

"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 Rodriguez. 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 Rodriguez permission to appeal. The trial court's amended certification therefore appears to accurately reflect that this is a plea bargain case and Rodriguez 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).

We therefore dismiss this appeal. Tex. R. App. P. 25.2(d).

Paul W. Green, Justice

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