Domingo Tamayo, Jr. v. State ( 2018 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
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
PER CURIAM
Sitting: Sandee Bryan Marion, Chief Justice
Luz Elena D. Chapa, Justice
Irene Rios, Justice
Delivered and Filed: December 19, 2018
DISMISSED
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
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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).
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).
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). This court gave appellant
notice that the appeal would be dismissed unless the trial court granted permission to appeal and
an amended trial court certification showing appellant has the right to appeal were made part of
the appellate record within thirty days. 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). Appellant’s appointed
counsel has filed a written response, stating the trial court denied a request to amend the
certification and counsel is unable to demonstrate appellant has a right of appeal. After reviewing
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the record and counsel’s notice, we agree appellant 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). We therefore dismiss this
appeal. See TEX. R. APP. P. 25.2(d).
PER CURIAM
DO NOT PUBLISH
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