Hugo Cesar Martinez v. The State of Texas--Appeal from 25th Judicial District Court of Guadalupe County

MEMORANDUM OPINION

No. 04-05-00441-CR

Hugo Cesar MARTINEZ,

Appellant

v.

The STATE of Texas,

Appellee

From the 25th Judicial District Court, Guadalupe County, Texas

Trial Court No. 04-1133-CR

Honorable Dwight E. Peschel, Judge Presiding

PER CURIAM

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: December 7, 2005

DISMISSED

Pursuant to a plea bargain agreement, Hugo Cesar Martinez pleaded guilty to three counts of aggravated sexual assault of a child. The trial court imposed sentence on May 23, 2005, and signed a certificate stating that this is a plea-bargain case and the defendant has NO right to appeal. See Tex. R. App. P. 25.2(a)(2). After Martinez timely filed a 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). 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 agreement, 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, Martinez 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 Martinez permission to appeal. // The trial court s certification therefore appears to accurately reflect that this is a plea bargain case and Martinez does not have a 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 October 18, 2005, we gave Martinez notice that the appeal would be dismissed unless written consent to appeal and an amended certification showing he has the right to appeal were signed by the trial judge and made part of the appellate record by November 17, 2005. 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). Neither written permission to appeal nor an amended certification showing Martinez has the right to appeal has been filed. We therefore dismiss this appeal. Tex. R. App. P. 25.2(d).

PER CURIAM

Do not publish