April Olivarez, Appellant v. The State of Texas, Appellee (2015)

MEMORANDUM OPINION

Pursuant to a plea-bargain agreement, April Mae Olivarez pled nolo contendere to theft and was sentenced to two years and a fine of $1500 in accordance with the terms of her plea-bargain agreement.   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 Olivarez filed a notice of appeal, the trial court clerk sent copies of the certification and notice of appeal to this 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 its permission to appeal.   See id.   The trial court's certification, therefore, appears to accurately reflect that this is a plea-bargain case and that Olivarez 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).

On February 11, 2015, we issued an order stating that this appeal would be dismissed pursuant to Texas Rule of Appellate Procedure 25.2(d), unless an amended trial court certification showing that Olivarez has the right to appeal was made part of the appellate record by March 13, 2015.   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 was filed.   This appeal is therefore dismissed pursuant to Rule 25.2(d).

PER CURIAM