Joel Chavez Garza v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-06-00774-CR

Joel Chavez GARZA,

Appellant

v.

The STATE of Texas,

Appellee

From the 175th Judicial District Court, Bexar County, Texas

Trial Court No. 2006-CR-4937A

Honorable Mary Roman, Judge Presiding

PER CURIAM

Sitting: Sarah B. Duncan , Justice

Karen Angelini , Justice

Sandee Bryan Marion , Justice

Delivered and Filed: December 20, 2006

DISMISSED

Joel Chavez Garza pleaded guilty to robbery pursuant to a plea bargain agreement. As part of his plea-bargain, Garza signed a separate waiver of appeal. 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). Garza 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 permission to appeal. (1) The trial court's certification therefore appears to accurately reflect that this is a plea bargain case, Garza does not have a right to appeal, and he 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 29, 2006, we notified Garza the appeal would be dismissed unless an amended trial court certification showing he has the right to appeal has been made part of the appellate record by December 29, 2006. 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). On December 6, Garza's court-appointed counsel responded to our order, stating that after reviewing the record, counsel "can find no right of appeal for appellant" and indicating that no amended trial court certification would be filed. We therefore dismiss this appeal. Tex. R. App. P. 25.2(d).

PER CURIAM

Do not publish

1. We also note that the clerk's record does not include any written motions that were ruled upon before trial.