John Gilbert Neville v. The State of Texas--Appeal from 379th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-04-00393-CR
John G. NEVILLE,
Appellant
v.
STATE of Texas,
Appellee
From the 379th Judicial District Court, Bexar County, Texas
Trial Court No. 2004-CR-1423
Honorable Bert Richardson, Judge Presiding

PER CURIAM

Sitting: Paul W. Green, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: November 10, 2004

MOTION TO EXPEDITE THE MANDATE GRANTED; DISMISSED

Pursuant to a plea bargain agreement, John Gilbert Neville pled nolo contendere to possession of a controlled substance-less than one gram and true to enhancement as habitual. On May 11, 2004, 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." See Tex. R. App. P. 25.2(a). After Neville timely filed a general notice of appeal, 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 Neville permission to appeal. The trial court's certification therefore appears to accurately reflect that this is a plea bargain case and Neville does 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 14, 2004, we gave Neville 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 14, 2004. 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 Neville has the right to appeal has not been filed. We therefore dismiss this appeal. Tex. R. App. P. 25.2(d). In addition, on October 26, 2004, appellant filed a motion requesting that if the appeal is dismissed, the mandate be issued immediately so that he can proceed with a request for parole. The motion is granted. See Tex. R. App. P. 18.1. The clerk is directed to issue the mandate immediately.

PER CURIAM

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