CASTRO v. STATE (2017)

MEMORANDUM OPINION

Pursuant to a plea agreement with the State, appellant Jimmy Castro pleaded nolo contendere to the offense of indecency with child-contact. The trial court imposed a sentence in the case in accordance with the agreement and signed a certificate stating this “[is] a plea-bargain case, and the defendant has NO right of appeal.” See TEX. R. APP. P. 25.2(a)(2). Appellant timely filed a pro se notice of appeal. The clerk's record, which includes the trial court's rule 25.2(a)(2) certification and written plea bargain agreement, has also been filed. See id. R. 25.2(d).

The clerk's record establishes the punishment assessed by the court in this case does not exceed the punishment recommended by the prosecutor and agreed to by the defendant. See id. R. 25.2(a)(2). The clerk's record also establishes the trial court did not give appellant permission to appeal. After reviewing the clerk's record, the trial court's certification accurately reflects that this is a plea bargain case and Castro does not have a 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). 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 February 1, 2017, we gave appellant notice that the appeal would be dismissed unless an amended trial court certification showing he has the right to appeal was made part of the appellate record by March 3, 2017. 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 February 8, 2017, appellant's appointed appellate counsel filed a written response, stating he has reviewed the record and concedes this cause must be dismissed because this is a plea bargain case and Castro does not have a right to appeal. We therefore dismiss this appeal. TEX. R. APP. P. 25.2(d).

PER CURIAM