Fourth Court of Appeals

San Antonio, Texas

December 5, 2018

No. 04-18-00894-CR

Domingo TAMAYO, JR.,

Appellant

v.

The STATE of Texas,

Appellee

From the 186th Judicial District Court, Bexar County, Texas

Trial Court No. 2018CR0676

Honorable Jefferson Moore, Judge Presiding

O R D E R

Appellant, Domingo Tamayo Jr., entered into a plea bargain with the State, and pled nolo 

contendere to three counts of aggravated assault of a child. The plea bargain contains a separate 

“Waiver of Appeal” that states:

I understand that upon my plea of guilty or nolo contendere, where the 

punishment does not exceed that recommended by the prosecutor and agreed to 

by me, my right to appeal will be limited to only: (1) those matters that were 

raised by written motion filed and ruled on before trial, or (2) other matters on 

which the trial court gives me permission to appeal. I understand that I have this 

limited right to appeal. However, as part of my plea bargain agreement in this 

case, I knowingly and voluntarily waive my right to appeal under (1) and (2) in 

exchange for the prosecutor’s recommendation, provided that the punishment 

assessed by the court does not exceed our agreement.

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” and “the defendant 

has waived the right of appeal.” See TEX. R. APP. P. 25.2(a)(2). Tamayo timely filed a notice of 

appeal. The clerk’s record, which includes the trial court’s rule 25.2(a)(2) certification and a 

written plea bargain agreement, has been filed. See TEX. R. APP. P. 25.2(d). This court 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.
The clerk’s record establishes the punishment assessed by the court does not exceed the 

punishment recommended by the prosecutor and agreed to by the defendant. Ordinarily, “[i]n 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.”

TEX. R. APP. P. 25.2(a)(2). However, when a defendant waives this limited right to appeal, the 

defendant may appeal only if the trial court later gives its express permission. See Willis v. State, 

121 S.W.3d 400, 403 (Tex. Crim. App. 2003); Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. 

App. 2003). The clerk’s record does not indicate the trial court gave Tamayo permission to

appeal. The trial court’s certification therefore appears to accurately reflect that this is a plea 

bargain case, Tamayo does not have a right to appeal, and he waived any limited right to appeal. 

See 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). 

Appellant is hereby given notice that this appeal will be dismissed pursuant to rule 

25.2(d) of the Texas Rules of Appellate Procedure unless the trial court’s written consent to 

appeal and an amended certification showing that Tamayo has the right to appeal is made part of 

the appellate record by December 27, 2018. See TEX. R. APP. P. 25.2(d); 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).

We order all appellate deadlines suspended until further order of the court. We further 

order the clerk of this court to serve copies of this order on the attorneys of record and the court 

reporter.

_________________________________

Luz Elena D. Chapa, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said 

court on this 5th day of December, 2018.

___________________________________

Keith E. Hottle

Clerk of Court