Domingo Tamayo, Jr. v. State ( 2018 )

Fourth Court of Appeals
San Antonio, Texas
December 5, 2018
No. 04-18-00894-CR
Domingo TAMAYO, JR.,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2018CR0676
Honorable Jefferson Moore, Judge Presiding
ORDER
Appellant, Domingo Tamayo Jr., entered into a plea bargain with the State, and pled nolo
contendere to three counts of aggravated assault of a child. 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 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). Tamayo 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). 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.” Id.
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 Tamayo permission to
appeal. The trial court’s certification therefore appears to accurately reflect that this is a plea
bargain case, Tamayo 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).
Appellant is hereby given notice that this appeal will be dismissed pursuant to rule
25.2(d) of the Texas Rules of Appellate Procedure unless the trial court’s written consent to
appeal and an amended certification showing that Tamayo has the right to appeal is made part of
the appellate record by December 27, 2018. See TEX. R. APP. P. 25.2(d); 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).
We order all appellate deadlines suspended until further order of the court. We further
order the clerk of this court to serve copies of this order on the attorneys of record and the court
reporter.
_________________________________
Luz Elena D. Chapa, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 5th day of December, 2018.
___________________________________
Keith E. Hottle
Clerk of Court