Derek Bailey v. The State of Texas--Appeal from 25th Judicial District Court of Guadalupe County

MEMORANDUM OPINION
No. 04-04-00408-CR
Derek Jonathan BAILEY,
Appellant
v.
The STATE of Texas,
Appellee
From the 274th Judicial District Court, Guadalupe County, Texas
Trial Court No. 03-1304-CR
Honorable Gary Steel, Judge Presiding

PER CURIAM

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: October 6, 2004

DISMISSED

Derek Bailey pleaded guilty aggravated sexual assault, indecency with a child, and possession or promotion of child pornography pursuant to a plea bargain agreement. The trial court imposed sentence in accordance with the agreement 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). Bailey timely filed a notice of appeal. 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 Bailey permission to appeal. The trial court's certification therefore appears to accurately reflect that this is a plea bargain case and Bailey 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 July 23, 2004, we gave Bailey 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 August 23, 2004. 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. filed) (not designated for publication). An amended certification showing Bailey 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