Opinion
No. 04-20-00422-CR
09-11-2020
Matthew HOGAN, Appellant v. THE STATE OF TEXAS, Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2017CR13464
Honorable Jefferson Moore, Judge Presiding
ORDER
Appellant entered into a plea bargain with the State, and pled nolo contendere to a felony offense.
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" See TEX. R. APP. P. 25.2(a)(2). Appellant timely filed a notice of appeal in which he states "the substance of the appeal was raised by written motion and ruled on before trial." 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. See TEX. R. APP. P. 25.2(a)(2). The clerk's record does not reflect the trial court gave permission to appeal and the only matters raised by written motion filed and ruled on before trial shown by the clerk's record are (1) motions regarding an investigator, (2) a motion for examination of defendant, (3) a motion for discovery, (4) a motion for State to reveal agreement, (5) a motion for witness list, (6) a motion in limine, (7) a Brady motion, (8) a motion for discovery of punishment evidence, (9) a motion for continuance, (10) a motion to withdraw as counsel, and (11) a motion to withdraw defendant's plea. See id.
The record also appears to support the trial court's certification that appellant does not have a 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, no later than October 12, 2020, appellant (1) files a written response, establishing that this is not a plea bargain case or that he has a right to appeal under Rule 25.2(a)(2)(A)-(C), or (2) obtains an amended certification from the trial court that states appellant has the right to appeal and causes it to be made part of the appellate record. See TEX. R. APP. P. 25.2(d); Daniels v. State, 110 S.W.3d 174 (Tex. App.—San Antonio 2003, order) (en banc), 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 reporters.
/s/_________
Sandee Bryan Marion, Chief Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 11th day of September, 2020.
/s/_________
MICHAEL A. CRUZ, Clerk of Court