Nos. 09-08-00521-CR, 09-08-00522-CR, 09-08-00523-CR
Opinion Delivered January 21, 2009. DO NOT PUBLISH.
On Appeal from the 252nd District Court, Jefferson County, Texas, Trial Cause Nos. 08-03341, 08-03340 08-03326. Appeals Dismissed.
Before MCKEITHEN, C.J., GAULTNEY and HORTON, JJ.
STEVE McKEITHEN, Chief Justice.
On November 17, 2008, the trial court sentenced Donnell Jay Thomas on three convictions for robbery. Thomas filed a notice of appeal on December 2, 2008. The trial court entered certifications of the defendant's right to appeal in which the court certified that these are plea-bargain cases and the defendant has no right of appeal. See T EX. R. A PP. P. 25.2(a)(2). The district clerk has provided the trial court's certifications to the Court of Appeals. On December 3, 2008, we notified the parties that we would dismiss the appeals unless amended certifications were filed within fifteen days of the date of the notice and made a part of the appellate records. See TEX. R. A PP. P. 25.2(f). The records have not been supplemented with amended certifications. Because the records do not contain certifications that show the defendant has the right of appeal, we must dismiss the appeals. See TEX. R. APP. P. 25.2(d). Accordingly, we dismiss the appeals for want of jurisdiction.
DAVID GAULTNEY, Justice.
DISSENTING OPINION
Respectfully, I suggest this Court should first obtain the record. Appellant's attorney asserts "that the unagreed punishment recommendation, the judgment, and the notice of appeal, all reflect that there was no agreement concerning Thomas's sentence, thereby, giving this Honorable Court jurisdiction." The argument appears to be wrong under current law, given the broad language in Shankle of the type of plea-bargain that "effectively puts a cap on punishment. . . ." See Shankle v. State, 119 S.W.3d 808, 813 (Tex.Crim.App. 2003). The certification also states separately that appellant waived any right of appeal. Nevertheless, if we had a record, we would have a duty to compare the certification to the record, and then act accordingly. See Dears v. State, 154 S.W.3d 610, 614-615 (Tex. Crim App. 2005). We do not have a record. When the issue is not contested in response to an inquiry from the Clerk, it would seem proper for the Court to dismiss the appeal based on the certification even without a complete record. See generally id. When an appellant's counsel contests the correctness of the certification, however, an appellate court should obtain a record of sufficient completeness and make a decision based on the record, possibly permitting accelerated briefing by the parties on the issue. The argum ents for a certification correction can then be addressed in an opinion. While it appears the result would likely be no different in this case, considering the documents appellant's counsel provided, obtaining an official record of sufficient completeness to permit review and analysis of the argument seems the proper approach.