Ernesto Garza, Jr. v. The State of Texas--Appeal from 187th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-04-00421-CR
Ernesto GARZA,
Appellant
v.
STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CR-8442
Honorable Raymond Angelini, Judge Presiding

PER CURIAM

Sitting: Paul W. Green, Justice

Sarah B. Duncan, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: October 6, 2004

DISMISSED

Appellant Ernesto Garza pled nolo contendere to aggravated sexual assault of a child and was sentenced within the terms of a plea bargain. Appellant timely filed a general notice of appeal. The trial court's Certification of Defendant's Right of Appeal states: (1) "this is a plea-bargain case, and the defendant has NO 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 Garza; therefore, the trial court's certification accurately reflects that the criminal case is a plea-bargain case. See Tex. R. App. P. 25.2(a)(2).

"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 does not contain a written motion ruled on before trial nor does it indicate the trial court granted Garza permission 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 August 2, 2004, we gave Garza 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 September 1, 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 Garza 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Do Not Publish