Walter Martinez v. State

Dismissed and Memorandum Opinion filed October 17, 2013

In The

Fourteenth Court of Appeals

NO. 14-13-00741-CR

WALTER MARTINEZ, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court
Harris County, Texas
Trial Court Cause No. 1379803

MEMORANDUM OPINION

Pursuant to a plea-bargain agreement with the State, appellant entered a plea
of guilty to aggravated robbery with a deadly weapon. Appellant was indicted for
capital murder. The plea-bargain in this case entailed the reduction of the charge
to aggravated robbery in exchange for appellant’s plea to the reduced charge. See
Shankle v. State, 119 S.W.3d 808, 813–14 (Tex. Crim. App. 2003). In accordance
with the terms of appellant’s plea agreement with the State, the trial court found
appellant guilty of aggravated robbery with a deadly weapon. The trial court then
sentenced appellant to confinement for thirty years in the Institutional Division of
the Texas Department of Criminal Justice. Appellant has filed a notice of appeal.
We dismiss the appeal.

In a plea-bargain case, a defendant may only appeal those matters that were
raised by written motion filed and ruled on before trial, or after getting the trial
court’s permission to appeal. Tex. R. App. P. 25.2(a)(2). A charge-bargain, like
that entered into by the appellant and the State in this case, where the defendant
agrees to plead guilty to a lesser or related offense in exchange for the prosecutor
dismissing or refraining from bringing another charge, is a plea-bargain under
Texas Rule of Appellate Procedure 25.2. See Shankle, 119 S.W.3d at 813–14.

The clerk’s record contains the trial court’s certification stating that that this
is not a plea-bargain case, and the defendant has the right of appeal.1 See Tex. R.
App. P. 25.2(a)(2). We conclude that the trial court’s certification of appeal is
defective because it inaccurately characterizes appellant’s conviction as not arising
out of a plea bargain, when the record clearly demonstrates there was a plea
bargain. Accordingly, we do not have jurisdiction over this appeal. Tex. R. App.
P. 25.2(A)(2); Sherwood v. State, 340 S.W.3d 929, 932 (Tex. App.—El Paso 2011,
no pet.) (“[W]hen the record is clear that the defendant waived any and all rights to
appeal, ordering a corrected certification would serve no purpose other than to
delay further proceedings as the defendant would still be unable to appeal his
conviction.”)

Accordingly, we dismiss the appeal.

1
We note it appears from the record that the trial court originally certified this “is a plea-
bargain case and the defendant has NO right of appeal.”

2
PER CURIAM

Panel consists of Justices Christopher, Donovan and Brown.
Do Not Publish C Tex. R. App. P. 47.2(b)