Whaley v. State

Full title: BENNIE DALE WHALEY, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Ninth District, Beaumont

Date published: Aug 12, 2009

No. 09-09-00310-CR (Tex. App. Aug. 12, 2009)

Opinion

No. 09-09-00310-CR

Opinion Delivered August 12, 2009. DO NOT PUBLISH.

On Appeal from the Criminal District Court Jefferson County, Texas, Trial Cause No. 08-03579.

Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.

MEMORANDUM OPINION

HOLLIS HORTON, Justice.

On April 17, 2009, the trial court sentenced Bennie Dale Whaley on a conviction for sexual assault of a child. Whaley filed a notice of appeal on July 10, 2009. The trial court entered a certification of the defendant's right to appeal in which the court certified that this is a plea-bargain case and the defendant has no right of appeal. See TEX. R. APP. P. 25.2(a)(2). The district clerk has provided the trial court's certification to the Court of Appeals. On July 14, 2009, we notified the parties that we would dismiss the appeal unless the appellant established grounds for continuing the appeal. The appellant filed a response but failed to establish that the trial court's certification should be amended. Because the record does not contain a certification that shows the defendant has the right of appeal, we must dismiss the appeal. See TEX. R. APP. P. 25.2(d). Accordingly, we dismiss the appeal. APPEAL DISMISSED.

DAVID GAULTNEY, Justice.

Dissenting Opinion

Respectfully, I suggest we should not dismiss this appeal without a record. Appellant challenges the process by which he was sentenced in the trial court, and he argues the certification was signed before the sentencing hearing and should not preclude his appeal. The record would permit review and analysis of the appellant's arguments. See Dears v. State, 154 S.W.3d 610, 614-615 (Tex. Crim. App. 2005); see also TEX. R. APP. P. 47.1.