McFarlin v. State

Full title: JEFFRIE WILLARD McFARLIN, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourth District, San Antonio

Date published: Feb 25, 2004

No. 04-03-00668-CR (Tex. App. Feb. 25, 2004)

Opinion

No. 04-03-00667-CR

Delivered and Filed: February 25, 2004. DO NOT PUBLISH.

Appeal from the 399th Judicial District Court, Bexar County, Texas, Trial Court No. 2002-CR-4102, Honorable Juanita Vasquez-Gardner, Judge Presiding. Dismissed.

Sitting: Karen ANGELINI, Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.

MEMORANDUM OPINION

PER CURIAM.

The trial court's certification in this appeal states that "the defendant has waived the right of appeal." The clerk's record reflects that in his plea-bargain agreement, Jeffrie Willard McFarlin signed the following "Waiver of Appeal":

I understand that upon my plea of guilty or nolo contendere, where 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 and 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 right 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 clerk's record, which contains the plea-bargain agreement, establishes the punishment assessed by the court does not exceed the punishment recommended by the prosecutor and agreed to by the defendant. The trial court's certification, therefore, appears to accurately reflect that this is a plea-bargain case and that McFarlin has waived his right to appeal. We must dismiss an appeal "if a certification that shows the defendant has the right of appeal has not been made part of the record." Tex.R.App.P. 25.2(d). We, therefore, warned McFarlin that this appeal would be dismissed pursuant to Texas Rule of Appellate Procedure 25.2(d), unless an amended trial court certification showing that McFarlin had the right to appeal was made part of the appellate record by February 6, 2004. See Tex.R.App.P. 25.2(d), 37.1; Daniels v. State, 110 S.W.3d 174 (Tex. App.-San Antonio 2003, order); Esparza v. State, No. 04-03-00681-CR, 2003 WL 22899788 (Tex. App.-San Antonio Dec. 10, 2003, no pet. h.) (not designated for publication). No such amended trial court certification has been filed. This appeal is, therefore, dismissed pursuant to rule 25.2(d).