Sean Michael Foxx v. the State of Texas ( 2023 )

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Fourth Court of Appeals
San Antonio, Texas
January 6, 2023
No. 04-22-00871-CR
Sean Michael FOXX,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2012CR8672A
Honorable Mary D. Roman, Judge Presiding
ORDER
Appellant Sean Michael Foxx entered into a plea bargain with the State, pursuant to
which he pleaded nolo contendere to the charged offense. The trial court imposed a sentence on
January 13, 2014 in accordance with the agreement 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). 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 clerk’s record includes the written plea bargain
agreement. See id. 25.2(d). 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 id.
25.2(a)(2). The record also appears to support the trial court’s certification that Appellant does
not have a right to appeal. See Dears v. State, 154 S.W.3d 610 (Tex. Crim. App. 2005) (holding
court of appeals should review clerk’s record to determine whether trial court’s certification is
accurate).
The record further demonstrates Appellant did not file a motion for new trial. Therefore,
a notice of appeal was due February 12, 2014, or the notice and a motion for extension of time to
file, were due fifteen days later on February 27, 2014. TEX. R. APP. P. 26.2(a)(1), 26.3. The
record contains a notice of appeal file stamped December 9, 2022. See TEX. R. APP. P. 26.3.
We therefore order appellant to file a response, by January 26, 2023, establishing
(1) the notice of appeal was timely filed by mail and (2) an amended certification showing he
has the right to appeal has been made part of the appellate record. See TEX. R. APP. P. 25.2(d),
26.2, 26.3, 37.1. If a supplemental clerk’s record is required to show appellant has the right to
appeal, appellant must request a supplemental record from the trial court clerk and file a copy of
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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 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.
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Luz Elena D. Chapa, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 6th day of January, 2023.
___________________________________
MICHAEL A. CRUZ, Clerk of Court