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Galvan v. State

Court of Appeals of Texas, Fourth District, San Antonio

December 12, 2013

George GALVAN, Appellant
v.
THE STATE OF TEXAS, Appellee

From the 186th Judicial District Court, Bexar County, Texas Trial Court No. 2012CR9426 Honorable Maria Teresa Herr, Judge Presiding

ORDER

Karen Angelini, Justice

Pursuant to a plea-bargain agreement, George Galvan pled nolo contendere to theft from an elderly person and was sentenced to ten years and a fine of $2000 in accordance with the terms of his plea-bargain agreement. On October 17, 2013, 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 Galvan 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, 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 Galvan 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).

This appeal will be dismissed pursuant to Texas Rule of Appellate Procedure 25.2(d), unless an amended trial court certification showing that Galvan has the right to appeal is made part of the appellate record by January 13, 2013 See Tex. R. App. P. 25.2(d), 37 1; ...


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