
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN




NO. 03-05-00832-CR




Alex Garcia, Appellant

v.

The State of Texas, Appellee





FROM THE COUNTY COURT OF SAN SABA COUNTY
NO. 6,856, HONORABLE BYRON THEODOSIS, JUDGE PRESIDING




M E M O R A N D U M   O P I N I O N
 
On February 21, 2003, appellant Alex Garcia pleaded guilty and was convicted by
the court of driving while his license was suspended.  Pursuant to a plea bargain, Garcia was
sentenced to ten days in jail and a $100 fine, but imposition of sentence was suspended and Garcia
was placed on probation.  As part of the bargain, Garcia waived his right of appeal.
On December 20, 2004, the county court revoked probation and imposed sentence
following a hearing on the State’s motion.  Garcia filed his notice of appeal the same day.  This
Court was first notified of the appeal on December 28, 2005, when the clerk’s record was received. 
On January 10, 2006, the Court received a supplemental clerk’s record containing the trial court’s
certification stating that this is a plea-bargain case and Garcia has no right of appeal and that Garcia
waived the right of appeal.  See Tex. R. App. P. 25.2(d).
If a defendant plea bargains for probation, the right to appeal the conviction is limited
by rule 25.2(a)(2).  Feagin v. State, 967 S.W.2d 417, 419 (Tex. Crim. App. 1998) (applying
predecessor rule).  But rule 25.2(a)(2) does not apply to an appeal from an order revoking probation. 
Id.  Even if a defendant plea bargains for probation, an appeal from an order revoking that probation
is not a plea-bargain case.  Thus, while the trial court’s certification would have been correct if
Garcia had sought to appeal his original conviction, the plea bargain and waiver of appeal do not
limit Garcia’s right of appeal from the revocation order.
For these reasons, the trial court’s certification of Garcia’s right of appeal is incorrect
and therefore defective.  See Dears v. State, 154 S.W.3d 610, 614 (Tex. Crim. App. 2005).  The
appeal is abated so the county court can prepare a corrected certification of appeal stating that this
is not a plea-bargain case and the defendant has the right of appeal.  A supplemental clerk’s record
containing the corrected certification shall be tendered for filing no later than February 24, 2006.
 
 
                                                __________________________________________
                                                Bob Pemberton, Justice
Before Chief Justice Law, Justices Patterson and Pemberton
Filed:   February 14, 2006
Do Not Publish
