Adrian Gilbert Torres v. State ( 2019 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-18-00940-CR
Adrian Gilbert TORRES,
Appellant
v.
The STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 2018CR9950W
Honorable Melisa C. Skinner, Judge Presiding
PER CURIAM
Sitting: Luz Elena D. Chapa, Justice
Irene Rios Justice
Beth Watkins, Justice
Delivered and Filed: January 30, 2019
DISMISSED
Appellant entered into a plea bargain with the State, pursuant to which he pled nolo
contendere to intoxication manslaughter and pled true to a repeat offender enhancement allegation.
The plea bargain contains 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
04-18-00940-CR
prosecutor’s recommendation, provided that the punishment assessed by the court
does not exceed our agreement.
The trial court imposed sentence in accordance with the agreement and signed a certificate stating
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). Torres 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).
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 Torres permission to appeal.
The trial court’s certification therefore appears to accurately reflect that this is a plea
bargain case, Torres does not have a right to appeal, and he 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 19, 2018, we gave Torres 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 9, 2019. 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
-2-
04-18-00940-CR
designated for publication). We have received no response to our order and neither written
permission to appeal nor an amended certification showing Torres has the right to appeal has been
filed. We therefore dismiss this appeal.
PER CURIAM
DO NOT PUBLISH
-3-