Ashley Cerros v. State

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-13-00090-CR

Ashley CERROS, Appellant

v.

The STATE of Texas, Appellee

From the 399th Judicial District Court, Bexar County, Texas Trial Court No. 2012CR9086W Honorable Ray Olivarri, Judge Presiding

PER CURIAM

Sitting: Karen Angelini, Justice Sandee Bryan Marion, Justice Marialyn Barnard, Justice

Delivered and Filed: March 20, 2013

DISMISSED

Pursuant to the terms of her plea-bargain agreement, appellant pled nolo contendere to

possession of a controlled substance and was placed on deferred adjudication community

supervision. She then filed a notice of appeal from the order placing her on deferred adjudication

community supervision. On January 10, 2013, 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 appellant 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 04-13-00090-CR

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). In Hargesheimer v. State, 182 S.W.3d 906, 913 (Tex. Crim. App.

2006), the court of criminal appeals held that “in a plea-bargain case for deferred adjudication

community supervision, the plea bargain is complete at the time the defendant enters his plea of

guilty in exchange for deferred adjudication community supervision.” Thus, Texas Rule of

Appellate Procedure 25.2(a)(2) “will restrict appeal only when the defendant appeals his

placement on deferred adjudication community supervision pursuant to the original plea.” Id.

According to the court, “[u]nder this circumstance, the trial judge certifying the defendant’s right

of appeal may designate the case on the certification form as ‘a plea-bargain case, and the

defendant has NO right of appeal.’” Id. If, however, the defendant filed written motions that

were ruled on before his placement on deferred adjudication community supervision pursuant to

Rule 25.2(a)(2)(A), or obtained permission from the trial court to appeal his placement on

deferred adjudication community supervision pursuant to Rule 25.2(a)(2)(B), then he would have

a right to appeal. Id.

Here, the clerk’s record, which contains a written plea-bargain agreement, establishes that

in placing appellant on deferred adjudication community supervision, the trial court complied

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 appellant does not have a right to appeal. We must dismiss an appeal “if a

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certification that shows the defendant has the right of appeal has not been made part of the

record.” TEX. R. APP. P. 25.2(d).

We, therefore, warned appellant that this appeal would be dismissed pursuant to Texas

Rule of Appellate Procedure 25.2(d), unless an amended trial court certification showing that she

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).

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