Clay V. Rivers v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00228-CR
Clay V. RIVERS,
Appellant
v.
The STATE of Texas,
Appellee

From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CR-8054
Honorable Mary Rom n, Judge Presiding

PER CURIAM

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: July 2, 2003

APPEAL DISMISSED

Pursuant to a plea bargain agreement, Clay V. Rivers pled nolo contendere to aggravated assault with a deadly weapon. The trial court imposed sentence on February 24, 2003, and signed a certificate 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 Rivers timely filed a notice of appeal, the clerk sent copies of the certification and notice of appeal to this court. See Tex. R. App. P. 25.2(e). The clerk's record, which includes the trial court's Rule 25.2(a)(2) certification, has been filed. See Tex. R. App. P. 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." Tex. R. App. P. 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 Tex. R. App. P. 25.2(a)(2). The clerk's record does not include a written motion filed and ruled upon before trial; nor does it indicate the trial court gave Rivers permission to appeal. The trial court's certification therefore appears to accurately reflect that this is a plea bargain case and Rivers does not have a right to appeal. 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 7, 2003, we gave Rivers 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 9, 2003. See Tex. R. App. P. 25.2(d); 37.1; Daniels v. State, No. 04-03-00176-CR, 2003 WL 21011277 (Tex. App.-San Antonio May 7, 2003, order). An amended certification showing Rivers has the right to appeal has not been filed. We therefore dismiss this appeal. Tex. R. App. P. 25.2(d).

PER CURIAM

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