Nelwyn Miller v. John R. Mercy ( 2008 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-08-00025-CV ______________________________



NELWYN MILLER, Appellant

V.

JOHN R. MERCY, Appellee

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On Appeal from the County Court at Law Bowie County, Texas Trial Court No. 06C1643A-CCL

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Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Appellant, Nelwyn Miller, and appellee, John R. Mercy, have filed with this Court a joint motion to dismiss the pending appeal in this matter and remand the cause to the trial court. The parties represent to this Court they have reached a full and final settlement. In such a case, no real controversy exists, and in the absence of a controversy, the appeal is moot.

We grant the motion. We set aside without regard to the merits the judgment of the trial court and remand the case to the trial court for rendition of judgment in accordance with the agreement. See Tex. R. App. P. 42.1(a)(2)(B).

Jack Carter

Justice

Date Submitted: June 26, 2008

Date Decided: June 27, 2008

60;  Tommy Ray Young appeals from his conviction by the trial court for deadly conduct. Young's punishment was enhanced as a habitual offender. The trial court sentenced Young to thirty-five years' imprisonment. We dismiss Young's appeal for want of jurisdiction.

          The trial court filed a certification, in accordance with Rule 25.2(a)(2), that this case "[i]s a plea-bargain case, and the Defendant has NO right of appeal." Rule 25.2(a)(2) states, in pertinent part:

(2) . . . A defendant in a criminal case has the right of appeal under Code of Criminal Procedure article 44.02 and these rules. The trial court shall enter a certification of the defendant's right of appeal in every case in which it enters a judgment of guilt or other appealable order.

Tex. R. App. P. 25.2(a)(2). If a certification showing that the defendant has the right to appeal is not made a part of the appellate record, we must dismiss the case unless the record affirmatively indicates that an appellant may have the right to appeal. Tex. R. App. P. 25.2(d); see Greenwell v. Court of Appeals for Thirteenth Judicial Dist., 159 S.W.3d 645, 649 (Tex. Crim. App. 2005); Dears v. State, 154 S.W.3d 610, 612 (Tex. Crim. App. 2005). We have examined the clerk's record to determine whether the trial court's certification is defective. See Dears, 154 S.W.3d at 613. Nothing in the record indicates the certification is defective. This Court lacks jurisdiction over this appeal.

          On December 28, 2005, we informed Young, by letter, of this apparent defect in our jurisdiction and informed him that, if he did not show us how we have jurisdiction, within ten days of the letter, his appeal would be subject to dismissal for want of jurisdiction. Young has now requested an extension of thirty days to file a response to our letter. The motion for extension contains no explanation of the need for an extension. We overrule Young's motion for extension.

          We dismiss the appeal for want of jurisdiction.

                                                                           Donald R. Ross

                                                                           Justice

Date Submitted:      January 11, 2006

Date Decided:         January 12, 2006

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