Florencio Palomares, Jr. v. the State of Texas

Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-21-00304-CR Florencio PALOMARES, Jr., Appellant v. The STATE of Texas, Appellee From the 25th Judicial District Court, Guadalupe County, Texas Trial Court No. 19-2567-CR-C Honorable William D. Old III, Judge Presiding

PER CURIAM Sitting: Beth Watkins, Justice

Liza A. Rodriguez, Justice Lori I. Valenzuela, Justice

Delivered and Filed: September 29, 2021 DISMISSED

Appellant Florencio Palomares, Jr. entered into a plea bargain with the State pursuant to which he pleaded guilty to aggravated assault. 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.” See TEX. R. APP. P. 25.2(a)(2). Appellant filed a notice of appeal, and the district clerk filed a copy of the clerk’s record, which includes the trial court’s Rule 25.2(a)(2) certification and a written plea bargain agreement. See id. R. 25.2(d). 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.

Here, the clerk’s record establishes the punishment assessed by the trial court does not exceed the punishment recommended by the prosecutor and agreed to by the appellant, and appellant’s notice of appeal explicitly acknowledges this is the case. See id. R. 25.2(a)(2). The clerk’s record does not reflect the trial court gave permission to appeal or that appellant’s specific appeal is expressly authorized by statute. Id. While appellant’s notice of appeal indicates he wishes to appeal “matters that were raised by written motion filed and ruled on before trial,” the clerk’s record shows the only matters raised by written motion filed before trial are: (1) a motion to release appellant and set reasonable bail; (2) a motion to reduce bond; (3) a motion in limine; (4) a “comprehensive request for notice of intention to introduce evidence”; (5) a motion for discovery and disclosure of exculpatory, mitigating, or inconsistent evidence; (6) a “comprehensive motion for discovery”; (7) a motion requesting disclosure of expert witnesses; (8) a motion for discovery of punishment evidence; (9) a motion for the judge to assess punishment; and (10) a motion to redact portions of appellant’s recorded statement to law enforcement. The record shows the trial court denied appellant’s motion to reduce bond, but any appeal of that ruling was rendered moot by appellant’s subsequent conviction. See Armendarez v. State, 798 S.W.2d 291, 291 (Tex. Crim. App. 1990). Moreover, the record does not show the trial court ever ruled on appellant’s other pretrial motions. See TEX. R. APP. P. 25.2(a)(2).

Because the record appears to support the trial court’s certification that appellant does not have a right to appeal, on August 10, 2021, we notified appellant that this appeal would be dismissed pursuant to Rule 25.2(d) of the Texas Rules of Appellate Procedure unless an amended certification showing appellant has the right to appeal was made part of the appellate record by September 9, 2021. 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 designated for publication); see also 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).

In response to our August 10 order, appellant filed a “Notification of Court Costs Issue.” Appellant’s notification states his appointed counsel “is not aware of any basis to prevent this appeal from being dismissed,” but asks this court to modify the trial court’s judgment to delete an assessment of attorney’s fees imposed as costs. The State filed a response to appellant’s notification, and appellant filed a reply. Appellant did not file an amended certification showing he has the right to appeal.

Neither appellant’s notification nor his reply cites authority holding that we may modify a judgment where, as here, “a certification that shows the defendant has the right of appeal has not been made part of the record.” 1 TEX. R. APP. P. 25.2(d). Because appellant has not filed an amended certification showing he has the right to appeal, the plain language of Rule 25.2 requires us to dismiss his appeal. See id. Accordingly, this appeal is dismissed.

PER CURIAM DO NOT PUBLISH