Jeffrey S. Kelly, Pamela K. Kelly and Jeff Kelly Construction v. Stock Building Supply of Texas, L.P. d/b/a Stock Building Supply--Appeal from 250th District Court of Travis County

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Laws-info.com » Cases » Texas » 3rd District Court of Appeals » 2010 » Jeffrey S. Kelly, Pamela K. Kelly and Jeff Kelly Construction v. Stock Building Supply of Texas, L.P. d/b/a Stock Building Supply--Appeal from 250th District Court of Travis County

State: Texas

Court: Criminal Court of Appeals

Docket No: 03-10-00749-CV

Case Date: 12/17/2010

Plaintiff: BEN OGBODIEGWU

Defendant: THE STATE OF TEXAS (Other)

Preview:Joel Chavez Garza v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County
MEMORANDUM OPINION No. 04-06-00773-CR Joel Chavez GARZA, Appellant v. The STATE of Texas, Appellee From the 175th Judicial District Court, Bexar County, Texas Trial Court No. 2006-CR-2278 Honorable Mary Roman, Judge Presiding

PER CURIAM Sitting: Sarah B. Duncan , Justice Karen Angelini , Justice Sandee Bryan Marion , Justice Delivered and Filed: December 20, 2006 DISMISSED Joel Chavez Garza pleaded guilty to aggravated sexual assault of a child pursuant to a plea bargain agreement. As part of his plea-bargain, Garza signed a separate waiver of appeal. The trial court imposed sentence in accordance with the agreement 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). Garza timely filed a notice of appeal. The clerk's record, which includes the trial court's Rule 25.2(a)(2) certification, has been filed. See Tex. R. App. P. 25.2(d). The clerk's record, which contains a written plea bargain agreement, 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, a defendant may waive this limited right to appeal. See Willis v. State, 121 S.W.3d 400, 403 (Tex. Crim. App. 2003). When a valid waiver of appeal has been executed, a defendant may appeal only if the trial court later gives its express permission. Id.; Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003). The clerk's record does not indicate the trial court gave permission to appeal. (1) The trial court's certification therefore appears to accurately reflect that this is a plea bargain case, Garza does not have a right to appeal, and he waived any limited right to appeal. This court must
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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 November 29, 2006, we notified Garza the appeal would be dismissed unless an amended trial court certification showing he has the right to appeal has been made part of the appellate record by December 29, 2006. 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. 04-0300176-CR, 2003 WL 21508347 (July 2, 2003, pet. ref'd) (not designated for publication). On December 6, Garza's court-appointed counsel responded to our order, stating that after reviewing the record, counsel "can find no right of appeal for appellant" and indicating that no amended trial court certification would be filed. We therefore dismiss this appeal. Tex. R. App. P. 25.2(d). PER CURIAM Do not publish 1. We also note that the clerk's record does not include any written motions that were ruled upon before trial.

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