Elishia Tubbs v. The State of Texas--Appeal from 290th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00593-CR

Elishia TUBBS,

Appellant

v.

The STATE of Texas,

Appellee

From the 290th Judicial District Court, Bexar County, Texas

Trial Court No. 2004-CR-4659

Honorable Sharon MacRae, Judge Presiding

PER CURIAM

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: December 21, 2005

DISMISSED

Pursuant to a plea bargain agreement, Elishia Tubbs pleaded nolo contendere to possession of four (4) grams or more but less than two hundred (200) grams of cocaine with intent to deliver. As part of his plea bargain, Tubbs signed a separate Waiver of Appeal that states:

I understand that upon my plea of guilty or nolo contendere, where the punishment does not exceed that recommended by the prosecutor and agreed to by me, my right to appeal will be limited to only: (1) those matters that were raised by written motion filed and ruled on before trial, or (2) other matters on which the trial court gives me permission to appeal. I understand that I have this limited right to appeal. However, as part of my plea bargain agreement in this case, I knowingly and voluntarily waive my right to appeal under (1) and (2) in exchange for the prosecutor s recommendation, provided that the punishment assessed by the court does not exceed our 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). Tubbs timely filed a 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 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, a defendant may waive this limited right to appeal. See Willis v. State, 121 S.W.3d 400, 403 (Tex. Crim. App. 2003). When a valid waiver of appeal has been executed, a defendant may appeal only if the trial court later gives its express permission. Id.; Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003). The clerk s record does not indicate the trial court gave Tubbs permission to appeal. // The trial court s certification therefore appears to accurately reflect that this is a plea bargain case, Tubbs does not have a right to appeal, and Tubbs 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 November 8, 2005, we gave Tubbs notice that the appeal would be dismissed unless written permission to appeal and an amended certification showing he has the right to appeal were made part of the appellate record by December 8, 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. ref d) (not designated for publication). Neither written permission to appeal nor an amended certification showing Tubbs has the right to appeal has been filed. Therefore, the appeal is dismissed. Tex. R. App. P. 25.2(d).

PER CURIAM

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