Brandon McFarland v. The State of Texas--Appeal from 379th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-06-00741-CR

Brandon MCFARLAND,

Appellant
v.
The STATE of Texas,

Appellee
From the 379th Judicial District Court, Bexar County , Texas

Trial Court No. 2006-CR-6943

Honorable Bert Rich ardson, Judge Presiding

PER CURIAM

Sitting: Sandee Bryan Marion , Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

Delivered and Filed: January 10, 2007

DISMISSED

Defendant Brandon McFarland pled guilty to possession of a controlled substance with intent to deliver, and was sentenced within the terms of a plea bargain. Defendant timely filed a notice of appeal, in which he states he was granted permission by the trial court to appeal. The trial court's Certification of Defendant's Right of Appeal states this "is a plea-bargain case, and the defendant has NO right of appeal." See Tex. R. App. P. 25.2(a)(2). The clerk's record contains a written plea bargain and a written waiver of appeal, and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by defendant; therefore, the trial court's certification accurately reflects that defendant's case is a plea bargain case and defendant does not have a right of appeal. See Tex. R. App. P. 25.2(a)(2). Nothing in the limited clerk's record filed with this court supports defendant's contention that he received permission to appeal. The Waiver of Appeal section of the Plea Bargain is signed by defendant.

"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 does not contain a written motion ruled on before trial nor does it indicate the trial court granted defendant permission to appeal. This court must dismiss an appeal "if a certification that shows the defendant has the right of appeal has not been made a part of the record." Tex. R. App. P. 25.2(d). Accordingly, on November 15, 2006, this court issued an order stating this appeal would be dismissed pursuant to Rule 25.2(d) unless an amended trial court certification that shows appellant has the right of appeal was made part of the appellate record. See Daniels v. State,110 S.W.3d 174 (Tex. App.--San Antonio 2003, order); Tex. R. App. P. 25.2(d); 37.1. No amended trial court certification has been filed; therefore, this appeal is dismissed.

PER CURIAM

DO NOT PUBLISH