David Tafolla v. State

Fourth Court of Appeals
San Antonio, Texas
October 1, 2018
No. 04-18-00653-CR
David TAFOLLA,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2016CR8487
Honorable Kevin M. O'Connell, Judge Presiding
ORDER
Pursuant to a plea-bargain agreement, appellant pleaded nolo contendere to two counts of
robbery, and the trial court assessed a punishment of two eighteen-year terms of imprisonment to
be served concurrently. On August 13, 2018, 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 appellant 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 full
clerk’s record, including 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 appellant 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).
This appeal will be dismissed pursuant to Texas Rule of Appellate Procedure 25.2(d),
unless an amended trial court certification showing that appellant has the right to appeal is made
part of the appellate record by October 31, 2018. 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.
_________________________________
Irene Rios, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 1st day of October, 2018.
___________________________________
Keith E. Hottle
Clerk of Court