David Gene Smith v. State ( 2014 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00335-CR
David Gene SMITH,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2013CR4917
Honorable Maria Teresa Herr, Judge Presiding
PER CURIAM
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: June 11, 2014
DISMISSED
David Gene Smith entered into a plea bargain with the State, pursuant to which he pleaded
nolo contendere to aggravated assault with a deadly weapon and true to the State’s enhancement
allegations. The trial court imposed sentence in accordance with the agreement and signed a
certificate stating this “is a plea-bargain case, and the defendant has NO right of appeal.” Smith
timely filed a notice of appeal. The clerk’s record, which includes the trial court’s rule 25.2(a)(2)
certification and a written plea bargain agreement, has been filed. See TEX. R. APP. P. 25.2(d).
04-14-00335-CR
The clerk’s record establishes the punishment assessed by the court does not exceed the
punishment recommended by the prosecutor and agreed to by the defendant and that the trial court
denied permission to appeal. See TEX. R. APP. P. 25.2(a)(2). We have reviewed the clerk’s record,
and the trial court’s certification appears to accurately state that this is a plea bargain case and
Smith 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). 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.” TEX. R. APP. P. 25.2(d).
On May 21, 2014, we gave Smith notice that the appeal would be dismissed unless an
amended trial court certification showing he has the right to appeal has been made part of the
appellate record by June 4, 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), disp. on merits, No. 04-03-00176-CR, 2003 WL
21508347 (July 2, 2003, pet. ref’d) (not designated for publication). An amended certification
showing Smith has the right to appeal has not been filed. We therefore dismiss this appeal. TEX.
R. APP. P. 25.2(d).
PER CURIAM
DO NOT PUBLISH
-2-