                                Fourth Court of Appeals
                                       San Antonio, Texas
                                   MEMORANDUM OPINION
                                           No. 04-18-00941-CR

                                        Adrian Gilbert TORRES,
                                               Appellant

                                                     v.

                                          The STATE of Texas,
                                                Appellee

                      From the 290th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2018CR9951W
                            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 assault 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
                                                                                       04-18-00941-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


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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




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