Opinion
No. 04-17-00795-CR
12-15-2017
Jerrod Maurice YOUNG, Appellant v. The STATE of Texas, Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2017CR8369W
The Honorable Joey Contreras, Judge Presiding
ORDER
Jerrod Young entered into a plea bargain with the State, pursuant to which he pleaded guilty to the charged offense. The plea bargain contains a separate "Waiver of Appeal" that states:
I understand that upon my plea of guilty or nolo contendere, where the 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 trial court imposed sentence in accordance with the agreement on August 2, 2017, 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). Young did not file a motion for new trial. Therefore, a notice of appeal was due September 1, 2017, or the notice and a motion for extension of time to file, were due fifteen days later. See TEX. R. APP. P. 26.2(a)(1), 26.3. The record contains a form notice of appeal, reflecting Young completed the form on November 21, 2017. Young did not file a motion for extension of time to file the notice of appeal. See TEX. R. APP. P. 26.3.
The clerk's record also includes the trial court's Rule 25.2(a)(2) certification and the written plea bargain agreement. 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 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 record also appears to support the trial court's certification that Young 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).
Young is given notice that this appeal will be dismissed unless, by January 4, 2018, (1) he files a response establishing that the notice of appeal was timely filed by mail and (2) an amended certification showing he has the right to appeal is made part of the appellate record. See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996) (holding that timely notice of appeal is necessary to invoke court of appeals' jurisdiction); TEX. R. APP. P. 25.2(d); 37.1; Daniels v. State, 110 S.W.3d 174 (Tex. App.—San Antonio 2003, order), disp. on merits, No. 04-03-00176-CR, 2003 WL 21508347 (July 2, 2003, pet. ref'd) (not designated for publication).
If a supplemental clerk's record is required to show the appeal is timely, Young must request a supplemental record from the trial court clerk and file a copy of the request with this court. If appellant fails to satisfactorily respond to this order within the time provided, the appeal will be dismissed. We order all appellate deadlines are 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 reporter.
/s/_________
Luz Elena D. Chapa, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 15th day of December, 2017.
/s/_________
KEITH E. HOTTLE,
Clerk of Court