i i i i i i
MEMORANDUM OPINION
No. 04-08-00846-CR
Mark Anthony LOPEZ, A/K/A Marco A. Lopez,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2007-CR-5889
Honorable Mary Roman, Judge Presiding
PER CURIAM
Sitting: Catherine Stone, Chief Justice
Steven C. Hilbig, Justice
Marialyn Barnard, Justice
Delivered and Filed: February 11, 2009
DISMISSED
Pursuant to a plea bargain, Mark Anthony Lopez pleaded nolo contendere to driving while
intoxicated. As part of his plea-bargain, Lopez 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.
04-08-00846-CR
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). Lopez timely filed a notice of appeal.
The clerk’s record, which includes the trial court’s Rule 25.2(a)(2) certification and a written plea
bargain agreement, has been filed. See TEX . R. APP . P. 25.2(d). 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.” Id.
The clerk’s record 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, when a defendant waives this limited right to appeal, the defendant
may appeal only if the trial court later gives its express permission. See Willis v. State, 121 S.W.3d
400, 403 (Tex. Crim. App. 2003); Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003).
The clerk’s record does not indicate the trial court gave Lopez permission to appeal. The trial court’s
certification therefore appears to accurately reflect that this is a plea bargain case, Lopez does not
have a right to appeal, and Lopez waived any limited right to appeal. See Dears v. State, 154 S.W.3d
610 (Tex. Crim. App. 2005) (holding that court of appeals should review clerk’s record to determine
whether trial court’s certification is accurate).
On December 18, 2008, we gave Lopez 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 January 20, 2009. See TEX . R.
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04-08-00846-CR
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 Lopez has
the right to appeal has been filed. We therefore dismiss this appeal.
PER CURIAM
Do not publish
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