Ronald Simms v. The State of Texas--Appeal from 227th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-04-00283-CR
Ronald SIMMS,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2003-CR-4081
Honorable Philip A. Kazen, Jr., Judge Presiding

PER CURIAM

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: August 4, 2004

DISMISSED

Pursuant to a plea-bargain agreement, Ronald Simms pled nolo contendere to possession of a controlled substance and was sentenced to eight years imprisonment and a $1200 fine in accordance with the terms of his plea-bargain agreement. On April 19, 2004, 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 Simms 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). 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 id. 25.2(a)(2). In his notice of appeal, Simms claims that the plea-bargain agreement called for punishment to be assessed at eight years of community supervision. However, the written plea-bargain agreement contained in the clerk's record shows that Simms and the State agreed that punishment would be assessed at a maximum of eight years imprisonment and that the State would "make no recommendation of Defendant's deferred adjudication/community supervision application." However, the State reserved the right to "speak as to factual issues relevant to Defendant's punishment." Thus, the clerk record shows that the trial court did comply with the plea-bargain agreement.

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 Simms 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).

We, therefore, warned Simms that this appeal would be dismissed pursuant to Texas Rule of Appellate Procedure 25.2(d), unless an amended trial court certification showing that he had the right to appeal was made part of the appellate record by July 19, 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). No such amended trial court certification has been filed. This appeal is, therefore, dismissed pursuant to rule 25.2(d).

PER CURIAM

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