# Fourth Court of Appeals

San Antonio, Texas

December 5, 2018

No. 04

- 18

- 00894

- CR

Domingo TAMAYO, JR

. , Appellant

v.

The STATE of Texas, Appel lee

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 th ree 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 a nd 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 r ight 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 T EX

. R. A PP

. P. 25.2(a)(2). Tamayo timely filed a notice of appeal. The clerk ’ s record, which includes the trial court ’ s r ule 25.2(a)(2) certification and a written plea bargain agreement, has been filed. See T EX

. R. A PP

. 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 matter s that were raised by written motion filed and ruled on before trial, or (B) after getting the trial court ’ s permission to appeal. ”

T EX

. R. A PP

. 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 r ule 25.2(d) of the Texas Rules of Appellate Proc edure 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 T EX

. R. A PP

. 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 o f 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

.

___________________________________ K eith E. H ottle

Clerk of Court