Opinion
No. 04-13-00650-CR
2013-09-27
John CANALES, Appellant v. THE STATE OF TEXAS, Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2012CR8914
Honorable Philip A. Kazen, Jr., Judge Presiding
ORDER
Defendant pled nolo contendre to possession of a controlled substance PG 1 less than 1 gram and was sentenced within the terms of a plea bargain. The trial court imposed or suspended sentence on July 26, 2013. Because appellant did not file a motion for new trial, the notice of appeal was due to be filed August 26, 2013. Tex. R. App. P. 26.2(a)(1). A motion for extension of time to file the notice of appeal was due on September 9, 2013. Tex. R. App. P. 26.3. Appellant filed notice of appeal on September 23, 2013. Appellant did not file a motion for extension of time.
Therefore, it is ORDERED that appellant show cause in writing no later than October 10, 2013 why this appeal should not be dismissed for lack of jurisdiction.
We also note the trial court's Certification of Defendant's Right of Appeal states this "is a plea-bargain case, and the defendant has NO right of appeal" and "defendant has waived the right of appeal." See TEX. R. APP. P. 25.2(a)(2). The clerk's record contains a written plea bargain and a written waiver of appeal, and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by defendant; therefore, the trial court's certification accurately reflects that defendant's case is a plea bargain case and defendant does not have a right of appeal. See TEX. R. APP. P. 25.2(a)(2).
"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." TEX. R. APP. P. 25.2(a)(2). The clerk's record does not contain a written motion ruled on before trial nor does it indicate the trial court granted defendant permission to appeal. This court must dismiss an appeal "if a certification that shows the defendant has the right of appeal has not been made a part of the record." TEX. R. APP. P. 25.2(d).
If appellant demonstrates this court has jurisdiction no later than October 10, 2013, it is nevertheless ORDERED this appeal will be dismissed pursuant to Texas Rule of Appellate Procedure 25.2(d), unless an amended trial court certification that shows defendant has the right of appeal has been made part of the appellate record by October 30, 2013. See Daniels v. State, 110 S.W.3d 174 (Tex. App.—San Antonio 2003, order); TEX. R. APP. P. 25.2(d); 37.1.
All other appellate deadlines are SUSPENDED pending our resolution of the certification issue.
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Sandee Bryan Marion, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 27th day of September, 2013.
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Keith E. Hottle
Clerk of Court