Elvin Laron Burnes v. State ( 2014 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00298-CR
Elvin Laron BURNES,
Appellant
v.
The STATE
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2013CR5493
Honorable Philip A. Kazen, Jr., Judge Presiding
PER CURIAM
Sitting: Karen Angelini, Justice
Sandee Bryan Marion, Justice
Marialyn Barnard, Justice
Delivered and Filed: June 18, 2014
DISMISSED
Pursuant to a plea-bargain agreement, Elvin Burnes pled nolo contendere to having
committed aggravated assault and was sentenced to ten years imprisonment and a fine of $1500 in
accordance with the terms of his plea-bargain agreement. On January 27, 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 Burnes filed a notice of
appeal, the trial court clerk sent copies of the certification and notice of appeal to this court. See
04-14-00298-CR
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). 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. 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.
See id. The trial court’s certification, therefore, appears to accurately reflect that this is a plea-
bargain case and that Burnes 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 Burnes 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).
PER CURIAM
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