Matthew Hogan v. State ( 2020 )

Fourth Court of Appeals
San Antonio, Texas
October 22, 2020
No. 04-20-00422-CR
Matthew HOGAN,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2017CR13464
Honorable Jefferson Moore, Judge Presiding
ORDER
Sitting: Sandee Bryan Marion, Chief Justice
Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
The appellant entered into a plea bargain with the State, and pled nolo contendere to a
felony offense.
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” See TEX. R. APP. P. 25.2(a)(2). Appellant timely filed a notice of appeal in which he
states “the substance of the appeal was raised by written motion and ruled on before trial.” 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). 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 establishes the punishment assessed by the court does not exceed the
punishment recommended by the prosecutor and agreed to by the defendant. See TEX. R. APP.
P. 25.2(a)(2). The clerk’s record does not reflect the trial court gave permission to appeal and the
only matters raised by written motion filed and ruled on before trial shown by the clerk’s record
are (1) motions regarding an investigator, (2) a motion for examination of defendant, (3) a
motion for discovery, (4) a motion for State to reveal agreement, (5) a motion for witness list, (6)
a motion in limine, (7) a Brady motion, (8) a motion for discovery of punishment evidence, (9) a
motion for continuance, (10) a motion to withdraw as counsel, and (11) a motion to withdraw
defendant’s plea. See id.
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 that
court of appeals should review clerk’s record to determine whether trial court’s certification is
accurate).
On September 11, 2020, appellant was given notice that this appeal would be dismissed
pursuant to rule 25.2(d) of the Texas Rules of Appellate Procedure unless, no later than October
12, 2020, appellant (1) filed a written response, establishing that this is not a plea bargain case or
that he has a right to appeal under Rule 25.2(a)(2)(A)-(C), or (2) obtained an amended
certification from the trial court that states appellant has the right to appeal and causes it to be
made part of the appellate record. See TEX. R. APP. P. 25.2(d); Daniels v. State, 110 S.W.3d 174
(Tex. App.—San Antonio 2003, order) (en banc), disp. on merits, No. 04-03-00176-CR, 2003
WL 21508347 (July 2, 2003, pet. ref’d) (not designated for publication). Our order also
suspended all appellate deadlines until further order of the court. Appellant did not
respond to this court’s September 11, 2020, order; therefore, on October 21, 2020, this appeal
was dismissed.
On October 21, 2020, appellant’s appointed counsel, Mr. Michael D. Robbins, filed a
motion for rehearing in which he stated appellant “recall[ed] that the trial court orally granted
him permission to appeal.” Mr. Robbins asserts complete reporter’s records from the February
3, 2020 plea hearing and the July 29, 2020 sentencing hearing are necessary to determine
whether permission was granted and any appealable issues were raised at those hearings. Mr.
Robbins filed the request for a reporter’s record on September 15, 2020. According to Mr.
Robbins, court reporter Roxanne F. Pena took the record from these two hearings.
Ms. Pena is hereby ORDERED to file the reporter’s records from the February 3, 2020
hearing and the July 29, 2020 hearing with this court no later than November 23, 2020.
Appellant’s motion for rehearing is HELD IN ABEYANCE pending further order of this
court.
It is so ORDERED on October 22, 2020.
PER CURIAM
ATTESTED TO: _____________________________
Michael A. Cruz,
Clerk of Court