                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-18-00653-CR

                                          David TAFOLLA,
                                              Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                     From the 227th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2016CR8487
                          Honorable Kevin M. O’Connell, Judge Presiding

PER CURIAM

Sitting:          Sandee Bryan Marion, Chief Justice
                  Karen Angelini, Justice
                  Irene Rios, Justice

Delivered and Filed: October 24, 2018

DISMISSED

           Pursuant to a plea-bargain agreement, appellant pleaded nolo contendere to two counts of

robbery, and the trial court assessed a punishment of two eighteen-year terms of imprisonment to

be served concurrently. On August 13, 2018, the trial court signed a certification of defendant’s

right to appeal stating that this “is a plea-bargain case, and the defendant has NO right of appeal.”

See TEX. R. APP. P. 25.2(a)(2). After appellant filed a notice of appeal, the trial court clerk sent

copies of the certification and notice of appeal to this court. See id. 25.2(e). The full clerk’s record,

which includes the trial court’s Rule 25.2(a)(2) certification, has been filed. See id. 25.2(d).
                                                                                       04-18-00653-CR


        “In 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.” Id. 25.2(a)(2). The clerk’s record, which contains a written plea bargain, establishes the

punishment assessed by the court does not exceed the punishment recommended by the prosecutor

and agreed to by the defendant. See id. The clerk’s record does not include a written motion filed

and ruled upon before trial; nor does it indicate that the trial court gave its permission to appeal.

See id. The trial court’s certification, therefore, appears to accurately reflect that this is a plea-

bargain case and that appellant does not have a right to appeal. We 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. 25.2(d).

        We, therefore, warned Tafolla that this appeal would be dismissed pursuant to Texas Rule

of Appellate Procedure 25.2(d), unless an amended trial court certification showing that he had the

right to appeal was made part of the appellate record. See TEX. R. APP. P. 25.2(d), 37.1; Daniels

v. State, 110 S.W.3d 174 (Tex. App.—San Antonio 2003, order). No such amended trial court

certification has been filed.      Rather, Tafolla’s appointed counsel has filed a response

acknowledging Tafolla does not have a right to appeal. Accordingly, we dismiss this appeal

pursuant to Rule 25.2(d).

                                                   PER CURIAM

DO NOT PUBLISH




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