BRIAN ERNST v. THE STATE OF TEXAS--Appeal from 319th District Court of Nueces County

NUMBER 13-02-273-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

BRIAN ERNST, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 319th District Court

of Nueces County, Texas.

O P I N I O N

Before Justices Ya ez, Castillo, and Garza

Opinion by Justice Castillo

Appellant Brian Ernst appeals his conviction for indecency with a child. // Ernst

pleaded guilty pursuant to an agreed punishment recommendation. The trial court followed the recommendation and sentenced Ernst to three years in the Institutional Division of the Texas Department of Criminal Justice. This appeal ensued. Ernst filed a clerk's record and reporter's record. In three issues, he asserts: (1) his constitutional right not to be prosecuted twice for the same offense was violated when the State re-indicted him for an alleged offense that was the subject of an expired pre-trial diversion agreement between Ernst and the State; (2) prosecution twice for the same alleged offense violated his due process rights; and (3) the State did not use due diligence in prosecuting Ernst for the alleged violation of his pre-trial diversion contract. The trial court certified that Ernst has no right to appeal because this is a plea- bargain case. Tex. R. App. P. 25.2(a)(2). // The rule refers only to plea bargains with regard to guilty pleas. See Dears v. State, Nos. PD-1963-03, PD-1964-03, PD-1965-0, 2005 Tex. Crim. App. LEXIS 111, at *8 (Jan. 26, 2005). In a plea-bargain case, as here, we review the record to determine: (1) our jurisdiction; and (2) whether the trial court's certification is correct. See id. at *5; see also Greenwell v. Thirteenth Court of Appeals, No. AP-75,017, 2005 Tex. Crim. App. LEXIS 217, at *7 (Feb. 9, 2005). "The purpose of the certification requirement is to efficiently sort appealable cases from non-appealable cases." Greenwell, 2005 Tex. Crim. App. LEXIS 217, at *7. Certification allows appealable cases to move through the system unhindered while eliminating, at an early stage, the time and expense associated with non-appealable cases. Id. If there is something in whatever record does exist that indicates that an appellant has the right to appeal, we must determine whether the certification is deficient and resolve the conflict. See id. We must dismiss an appeal if a certification showing that the defendant has the right to appeal is not made part of the appellate record. See Dears, 2005 Tex. Crim. App. LEXIS 111, at *6; see Tex. R. App. P. 25.2(d).

In this case, Ernst filed his appeal prior to the January 1, 2003 amendments to rule 25.2. Accordingly, he had filed a clerk's record and a reporter's record. In the record is a motion to dismiss. See Greenwell, 2005 Tex. Crim. App. LEXIS 217, at *1. The trial court did not rule on the motion. See id.

We have reviewed the record, as Dears instructs. See Dears, 2005 Tex. Crim. App. LEXIS 111, at *11-12. This is a plea-bargain case. Tex. R. App. P. 25.2(a)(2). Ernst pleaded guilty and the punishment did not exceed the punishment recommended by the prosecutor. See Greenwell, 2005 Tex. Crim. App. LEXIS 217, at *2. There is no written motion ruled on before trial. See id. at *1; see Tex. R. App. P. 25.2(a)(2)(A). The trial court did not give Ernst permission to appeal. See Tex. R. App. P. 25.2(a)(2)(B). We conclude that the trial court's certification that Ernst does not have the right to appeal is correct. We vacate this Court's order issued on May 26, 2004. Greenwell, 2005 Tex. Crim. App. LEXIS 217, at *12. We dismiss the appeal. Tex. R. App. P. 25.2(d).

ERRLINDA CASTILLO

Justice

Publish. Tex. R. App. P. 47.2(b).

Opinion delivered and filed

this 17th day of February, 2005.