Frankie W. Nealy a/k/a Frankie Neally v. The State of Texas--Appeal from 399th Judicial District Court of Bexar County
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i i i i i i MEMORANDUM OPINION No. 04-08-00753-CR Frankie W. NEALY, a.k.a. Frankie Neally, Appellant v. The STATE of Texas, Appellee From the 399th Judicial District Court, Bexar County, Texas Trial Court No. 2006-CR-2894 Honorable Juanita A. Vasquez-Gardner, Judge Presiding PER CURIAM Sitting: Karen Angelini, Justice Sandee Bryan Marion, Justice Phylis J. Speedlin, Justice Delivered and Filed: December 23, 2008 DISMISSED Pursuant to a plea-bargain agreement, Frankie W. Nealy, a.k.a. Frankie Neally, pled nolo contendere to the offense of insurance fraud and was sentenced in accordance with the terms of his plea-bargain agreement. On October 8, 2008, 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 04-08-00753-CR TEX . R. APP . P. 25.2(a)(2). After Nealy 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. Id. 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. 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. See id. The trial court s certification, therefore, appears to accurately reflect that this is a plea-bargain case and that Nealy 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 Nealy 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. 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 DO NOT PUBLISH -2-
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