James Smith v. State ( 2014 )

The State of TexasAppellee/s
Fourth Court of Appeals
San Antonio, Texas
September 16, 2014
No. 04-14-00628-CR
James SMITH,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2014CR4942W
Honorable Mary D. Roman, Judge Presiding
ORDER
Pursuant to the terms of his plea-bargain agreement, James Smith pled nolo contendere to
forgery and was placed on deferred adjudication community supervision. He then filed a notice
of appeal from the order placing him on deferred adjudication community supervision. On June
17, 2014, 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 Smith 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.” Id. 25.2(a)(2). In Hargesheimer v. State, 182 S.W.3d 906, 913 (Tex. Crim. App.
2006), the court of criminal appeals held that “in a plea-bargain case for deferred adjudication
community supervision, the plea bargain is complete at the time the defendant enters his plea of
guilty in exchange for deferred adjudication community supervision.” Thus, Texas Rule of
Appellate Procedure 25.2(a)(2) “will restrict appeal only when the defendant appeals his
placement on deferred adjudication community supervision pursuant to the original plea.” Id.
According to the court, “[u]nder this circumstance, the trial judge certifying the defendant’s right
of appeal may designate the case on the certification form as ‘a plea-bargain case, and the
defendant has NO right of appeal.’” Id. If, however, the defendant filed written motions that
were ruled on before his placement on deferred adjudication community supervision pursuant to
Rule 25.2(a)(2)(A), or obtained permission from the trial court to appeal his placement on
deferred adjudication community supervision pursuant to Rule 25.2(a)(2)(B), then he would have
a right to appeal. Id.
Here, the clerk’s record, which contains a written plea-bargain agreement, establishes that
in placing Smith on deferred adjudication community supervision, the trial court complied with
the plea-bargain agreement. Further, 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 Smith 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.” TEX. R.
APP. P. 25.2(d).
This appeal will be dismissed pursuant to Texas Rule of Appellate Procedure 25.2(d),
unless an amended trial court certification showing that Smith has the right to appeal is made
part of the appellate record by October 16, 2014. See TEX. R. APP. P. 25.2(d), 37.1; Daniels v.
State, 110 S.W.3d 174 (Tex. App.—San Antonio 2003, order).
We ORDER all appellate deadlines be suspended until further order of the court.
_________________________________
Karen Angelini, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 16th day of September, 2014.
___________________________________
Keith E. Hottle
Clerk of Court