Luis Cisneros v. The State of Texas--Appeal from 186th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-04-00329-CR
Luis CISNEROS,
Appellant
v.
STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2003-CR-8357
Honorable Maria Teresa Herr, Judge Presiding

PER CURIAM

Sitting: Paul W. Green, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: October 6, 2004

DISMISSED

Appellant Luis Cisneros pled nolo contendere to possession of cocaine, less than one gram, and was sentenced within the terms of a plea bargain. The sentence was suspended and Cisneros was placed on community supervision for two years. Appellant timely filed a general notice of appeal. The Trial Court's Certification of Defendant's Right of Appeal states: "the defendant has waived the right of appeal." The clerk's record contains a written plea bargain and a written waiver of appeal, and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by Cisneros; therefore, the trial court's certification accurately reflects that Cisneros waived his right to appeal. See Tex. R. App. P. 25.2(a)(2). (1)

"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 Cisneros permission to appeal. The trial court's certification would have been accurate if it had reflected that this is a plea bargain case and Cisneros does not have the right to appeal in addition to the statement that Cisneros has 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 a part of the record." Tex. R. App. P. 25.2(d).

On June 17, 2004, we gave Cisneros notice that the appeal would be dismissed unless an amended certification showing he has the right to appeal has been made part of the record by July 19, 2004. 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 Cisneros 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. The written plea bargain provides that Cisneros agreed to a sentence of one year and $1200 fine. The plea bargain specifically states: "It is further understood and agreed by the parties that in the event the Court assessed (sic) terms, conditions and or (sic) a length of supervision of community supervision or deferred adjudication different from those agreed to by the parties, that such difference shall not constitute grounds for setting aside the Defendant's plea in this case." The plea bargain, signed by Cisneros, also states: "NOTE: The parties are not allowed to make binding agreement regarding the length of community supervision or the terms and conditions of community supervision, which are totally dependent upon the Court's discretion."