Albert Francis Toscano v. State

• Court: Court of Appeals of Texas
• Decided: July 27, 2018
• Docket: 04-18-00488-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas July 27, 2018

No. 04-18-00488-CR

Albert Francis TOSCANO, Appellant

v.

The STATE of Texas, Appellee

From the 227th Judicial District Court, Bexar County, Texas Trial Court No. 2017CR7513 Honorable Kevin M. O'Connell, Judge Presiding

ORDER Appellant entered into a plea bargain with the State, pursuant to which appellant pleaded nolo contendere to the offense of assault with bodily injury of a family member. The trial court imposed sentence in accordance with the agreement and signed a certificate stating this “is a plea-bargain case, and the defendant has NO right of appeal.” See TEX. R. APP. P. 25.2(a)(2). Appellant timely filed a notice of appeal. The clerk’s record, which includes the trial court’s rule 25.2(a)(2) certification and a written plea bargain agreement, has been filed. See id. R. 25.2(d). This court 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.

The clerk’s record establishes the punishment assessed by the court does not exceed the punishment recommended by the prosecutor and agreed to by the defendant. See id. R. 25.2(a)(2). The record also appears to support the trial court’s certification that appellant does not have a right to appeal. See Dears v. State, 154 S.W.3d 610 (Tex. Crim. App. 2005) (holding that court of appeals should review clerk’s record to determine whether trial court’s certification is accurate).

Appellant is hereby given notice that this appeal will be dismissed pursuant to rule 25.2(d) of the Texas Rules of Appellate Procedure unless an amended certification showing that appellant has the right to appeal is made part of the appellate record on or before August 27, 2018. See TEX. R. APP. P. 25.2(d), 37.1; Daniels v. State, 110 S.W.3d 174 (Tex. App.—San Antonio 2003, order), disp. on merits, No. 04-03-00176-CR, 2003 WL 21508347 (July 2, 2003, pet. ref’d) (not designated for publication). We ORDER all appellate deadlines are suspended until further order of the court. We further ORDER the clerk of this court to serve copies of this order on the attorneys of record and the court reporter.

_________________________________ Marialyn Barnard, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 27th day of July, 2018.

___________________________________ KEITH E. HOTTLE, Clerk of Court