Corey Thomas Loftice v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00643-CR
Corey Thomas LOFTICE,
Appellant
v.
STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 2003-CR-1018
Honorable Mark R. Luitjen, Judge Presiding

PER CURIAM

Sitting: Paul W. Green, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: November 5, 2003

DISMISSED

Appellant Corey Thomas Loftice pled nolo contendere to aggravated robbery and was sentenced within the terms of a plea bargain. On August 5, 2003, the trial court imposed sentence and signed a certificate stating that this "is a plea-bargain case, and the defendant has NO right of appeal" and "the defendant has waived the right of appeal." See Tex. R. App. P. 25.2(a). After Loftice timely filed a notice of appeal, (1) 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 that 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 contain a written motion ruled on before trial nor does it indicate the trial court granted Loftice permission to appeal. The trial court's certification therefore appears to accurately reflect that this is a plea bargain case and Lofticedoes not have the 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 a part of the record." Tex. R. App. P. 25.2(d).

On September 9, 2003, we gave Loftice notice that the appeal would be dismissed unless an amended certification showing he has the right to appeal has been made part of the record by October 9, 2003. See Tex. R. App. P. 25.2(d); 37.1; Daniels v. State, 110 S.W.3d 174, 177 (Tex. App.-San Antonio 2003, interlocutory order) (en banc). An amended certification showing Loftice 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

1. Appellant's notice of appeal states he is appealing a jurisdictional defect; however, appellant's explanation attached to the notice of appeal describes only incidents of ineffective assistance of counsel, a non-jurisdictional complaint. No jurisdictional defect appears on the face of the clerk's record.