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Miller v. State

Court of Appeals of Texas, Fourth District, San Antonio
Nov 22, 2006
No. 4-06-00729-CR (Tex. App. Nov. 22, 2006)

Opinion

No. 4-06-00729-CR

Delivered and Filed: November 22, 2006. DO NOT PUBLISH.

Appeal from the 175th Judicial District Court, Bexar County, Texas, Trial Court No. 2006-CR-3485, Honorable Mary Roman, Judge Presiding. Dismissed.

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


MEMORANDUM OPINION


Pursuant to a plea-bargain agreement, Neal Miller pled nolo contendere to possession of cocaine and was sentenced to one year in state jail in accordance with the terms of his plea-bargain agreement. On October 6, 2006, the trial court signed a certification of defendant's right to appeal stating that this "is a plea-bargain case, and the defendant has NO right of appeal." See Tex.R.App.P. 25.2(a)(2). After Miller filed a notice of appeal, the trial court clerk sent copies of the certification and notice of appeal to this court. See id. 25.2(e). The clerk's record, which includes the trial court's rule 25.2(a)(2) certification, has been filed. See id. 25.2(d). "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, which contains a written plea bargain, establishes the punishment assessed by the court does not exceed the punishment recommended by the prosecutor and agreed to by the defendant. See id. 25.2(a)(2). The clerk's record does not include a written motion filed and ruled upon before trial; nor does it indicate that the trial court gave its permission to appeal. The trial court's certification, therefore, appears to accurately reflect that this is a plea-bargain case and that Miller does not have a 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." Id. 25.2(d). We, therefore, warned Miller that this appeal would be dismissed pursuant to Texas Rule of Appellate Procedure 25.2(d), unless an amended trial court certification showing that he had the right to appeal was made part of the appellate record. See Tex.R.App.P. 25.2(d), 37.1; Daniels v. State, 110 S.W.3d 174 (Tex.App.-San Antonio 2003, order). No such amended trial court certification has been filed. This appeal is, therefore, dismissed pursuant to rule 25.2(d).


Summaries of

Miller v. State

Court of Appeals of Texas, Fourth District, San Antonio
Nov 22, 2006
No. 4-06-00729-CR (Tex. App. Nov. 22, 2006)
Case details for

Miller v. State

Case Details

Full title:NEAL MILLER, Appellant, v. THE STATE OF TEXAS, Appellee

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

Date published: Nov 22, 2006

Citations

No. 4-06-00729-CR (Tex. App. Nov. 22, 2006)