Jorge Martinez v. State

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-13-00199-CR Jorge MARTINEZ, Appellant v. The State of Tex The STATE of Texas, Appellee From the 175th Judicial District Court, Bexar County, Texas Trial Court No. 2013CR1083 Honorable Mary D. Roman, Judge Presiding PER CURIAM Sitting: Karen Angelini, Justice Sandee Bryan Marion, Justice Marialyn Barnard, Justice Delivered and Filed: May 22, 2013 DISMISSED Pursuant to a plea-bargain agreement, Jorge Martinez pled nolo contendere to driving while intoxicated, a third degree felony. In accordance with the terms of his plea-bargain agreement, Martinez was sentenced to three years in prison. On February 28, 2013, the trial court signed a certification of defendant’s right to appeal stating that this “is a plea-bargain case, and the defendant has NO right of appeal.” See TEX. R. APP. P. 25.2(a)(2). After Martinez filed a notice of appeal, the trial court clerk sent copies of the certification and notice of appeal to this 04-13-00199-CR court. See id. 25.2(e). The clerk’s record, which includes the trial court’s Rule 25.2(a)(2) certification, has been filed. See id. 25.2(d). “In 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.” Id. 25.2(a)(2). The clerk’s record, which contains a written plea bargain, establishes the punishment assessed by the court does not exceed the punishment recommended by the prosecutor and agreed to by the defendant. See id. The clerk’s record does not include a written motion filed and ruled upon before trial; nor does it indicate that the trial court gave Martinez permission to appeal. See id. The trial court’s certification, therefore, appears to accurately reflect that this is a plea-bargain case and that Martinez does not have a right to appeal. We 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. 25.2(d). We, therefore, warned Martinez that this appeal would be dismissed pursuant to Texas Rule of Appellate Procedure 25.2(d), unless an amended trial court certification showing that Martinez had the right to appeal was made part of the appellate record. See TEX. R. APP. P. 25.2(d), 37.1; Daniels v. State, 110 S.W.3d 174 (Tex. App.—San Antonio 2003, order). No such amended trial court certification has been filed. This appeal is, therefore, dismissed pursuant to Rule 25.2(d). PER CURIAM Do not publish -2-