Andres Pena v. State ( 2010 )

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MEMORANDUM OPINION
No. 04-10-00445-CR
Andres PENA,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2009-CR-7295
Honorable Philip A. Kazen, Jr., Judge Presiding
PER CURIAM
Sitting: Catherine Stone, Chief Justice
Steven C. Hilbig, Justice
Marialyn Barnard, Justice
Delivered and Filed: July 21, 2010
DISMISSED
Andres Pena pleaded nolo contendere to the offense of felon in possession of a firearm
pursuant to a plea bargain agreement. As part of his plea bargain, Pena signed a separate “Waiver
of Appeal.” The trial court imposed sentence and signed a certificate stating that 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). Pena timely filed a notice of appeal. The clerk’s record,
04-10-00445-CR
which includes the plea bargain agreement and the trial court’s Rule 25.2(a)(2) certification, 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 court gave Pena notice that the appeal would be dismissed unless an amended trial court
certification showing he 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). Pena’s appointed appellate counsel filed a written response, stating
she has reviewed the record and can find no right of appeal. After reviewing the record and
counsel’s notice, we agree that Pena 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. TEX . R. APP . P.
25.2(d).
PER CURIAM
Do not publish
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