Opinion
04-22-00122-CR
06-15-2022
Vincente Eulalio MALDONADO, Jr., Appellant v. The STATE of Texas, Appellee
DO NOT PUBLISH
From the 454th Judicial District Court, Medina County, Texas Trial Court No. 19-12-13485-CR Honorable Daniel J. Kindred, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice, Liza A. Rodriguez, Justice, Lori I. Valenzuela, Justice
MEMORANDUM OPINION
PER CURIAM.
Pursuant to a plea-bargain agreement, Appellant Vincente Eulalio Maldonado Jr. pled nolo contendere to murder and was sentenced to thirty years of imprisonment in accordance with the terms of his plea-bargain agreement. 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 Maldonado 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 clerk's record, which includes the trial court's Rule 25.2(a)(2) certification, has been filed. See id. 25.2(d).
"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, (B) after getting the trial court's permission to appeal; or (C) where the specific appeal is expressly authorized by statute." 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 Maldonado. 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. Thus, the trial court's certification appears to accurately reflect that this is a plea-bargain case and that Maldonado 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).
On April 20, 2022, we explained to Maldonado that this appeal would be dismissed pursuant to Texas Rule of Appellate Procedure 25.2(d) unless an amended trial court certification showing that Maldonado had the right to appeal was made part of the appellate record by May 20, 2022. See Tex. R. App. P. 25.2(d), 37.1; Daniels v. State, 110 S.W.3d 174 (Tex. App.-San Antonio 2003, order). Maldonado has filed a written response, stating that he intends to argue on appeal that "his plea of guilty was not voluntary, was made under duress, and that he received ineffective assistance of counsel." He further wishes "to address on appeal the objections to the Presentence Investigation Report and other objections made during the sentencing process." Maldonado further notes that he filed a motion to amend the trial court's certification, but the trial court denied his motion. Maldonado cites no authority that would allow him to bring the above appellate arguments pursuant to Rule 25.2(a)(2). See Tex. R. App. P. 25.2(a)(2) (explaining the rights to appeal of the defendant in a plea-bargain case).
We note that Maldonaldo's appellate issues do not fit within any of the recognized bases for appeal of a bargained-for sentence: the record does not reflect that his sentence exceeded the State's recommendation, that he is appealing a matter raised by a written motion that was ruled on before trial, or that the trial court granted him permission to appeal. See Tex. R. App. P. 25.2(a)(2); see also Brown v. State, No. 02-21-00083-CR, 2021 WL 3205065, at *1 (Tex. App.-Fort Worth July 29, 2021, no pet.) (dismissing appeal pursuant to Rule 25.2 because ineffective assistance of counsel argument "does not provide a valid basis for continuing the appeal"); Smith v. State, No. 05-19-00368-CR, 2020 WL 1283929, at *2 (Tex. App.-Dallas Mar. 17, 2020, no pet.) (dismissing appeal because involuntariness of plea is not appellate issue that can be appealed pursuant to Rule 25.2 unless appellant obtained trial court's permission); Carender v. State, 155 S.W.3d 929, 931 (Tex. App.-Dallas 2005, no pet.) (explaining that unless appellant obtained trial court's permission, court of appeals was without power to address his complaint regarding the voluntariness of his plea). We therefore do not have the power to address Maldonado's complaints. See Bayless v. State, 91 S.W.3d 801, 803 n.2 (Tex. Crim. App. 2002) (explaining that filing of timely notice of appeal invokes appellate court's jurisdiction, but appellate court may nonetheless be without "power" to address merits of complaint).
Because no amended certification has been filed, we dismiss Maldonado's appeal pursuant to Rule 25.2(d). See Tex. R. App. P. 25.2(d) ("The appeal must be dismissed if a certification that shows the defendant has the right of appeal has not been made part of the record under these rules.").