Tiffany Todd v. The State of Texas--Appeal from 186th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-07-00335-CR
Tiffany TODD,
Appellant
v.
The State of TEXAS,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2003-CR-6287
Honorable Maria Teresa Herr, Judge Presiding

PER CURIAM

 

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Phylis Speedlin, Justice

 

Delivered and Filed: June 6, 2007

 

DISMISSED FOR WANT OF JURISDICTION

Pursuant to the terms of her plea-bargain agreement, Appellant, Tiffany Todd, pled nolo contendere to the offense of forgery of a commercial instrument and was placed on deferred adjudication community supervision for a period of three years. Subsequently, the State filed a Motion to Enter Adjudication of Guilt and Revoke Community Supervision. Although Todd's community supervision was not revoked, the court issued an order altering and amending the terms and/or conditions of community supervision from which Todd now appeals. 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 Todd timely 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 clerk's record, which includes 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." Tex. R. App. P. 25.2(a)(2). In Hargesheimer v. State, 182 S.W.3d 906, 913 (Tex. Crim. App. 2006), the court of criminal appeals held that in a plea-bargain case for deferred adjudication community supervision, the plea bargain is complete at the time the defendant enters his plea of guilty in exchange for deferred adjudication community supervision. As such, Texas Rule of Appellate Procedure 25.2(a)(2) will restrict an appeal when the defendant appeals his placement on deferred adjudication community supervision pursuant to the original plea. Id. According to the court, "[u]nder this circumstance, the trial judge certifying the defendant's right of appeal may designate the case on the certification form as 'a plea-bargain case, and the defendant has NO right of appeal.'" Id. If, however, the defendant filed written motions that were ruled on before his placement on deferred adjudication community supervision pursuant to rule 25.2(a)(2)(A), or obtained permission from the trial court to appeal his placement on deferred adjudication community supervision pursuant to rule 25.2(a)(2)(B), then he would have a right to appeal. Id. This court does not have jurisdiction to consider an appeal from an order altering or modifying the conditions of community supervision. See Davis v. State, 195 S.W.3d 708, 711 (Tex. Crim. App. 2006); Basaldua v. State, 558 S.W.2d 2, 5 (Tex. Crim. App. 1977).

Here, the clerk's record, which contains a written plea bargain, establishes that in placing Todd on deferred adjudication community supervision, the trial court complied with the plea-bargain agreement. See id. Further, 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. The trial court's certification, therefore, appears to accurately reflect that this is a plea-bargain case and that Todd 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).

On May 21, appellant's counsel filed a letter stating that he had reviewed the electronic judicial records of this case and that Todd has no right of appeal, and this court has no appellate jurisdiction to consider an appeal. We agree. Accordingly, this appeal is dismissed for lack of jurisdiction. See Tex. R. App. P. 25.2 (d).

PER CURIAM

DO NOT PUBLISH