Chico Warn-Her Dyke v. State

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-14-00385-CR

Chico Warn-Her DYKE, Appellant

v. The State of The STATE of Texas, Appellee

From the 175th Judicial District Court, Bexar County, Texas Trial Court No. 2014CR1065 Honorable Mary D. Roman, Judge Presiding

PER CURIAM

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

Delivered and Filed: July 23, 2014

DISMISSED

Pursuant to a plea-bargain agreement, appellant pled nolo contendere to assault and was

sentenced to four years in prison in accordance with the terms of his plea-bargain agreement. On

May 14, 2014, 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 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). 04-14-00385-CR

“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 appellant permission to

appeal. See id. 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 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 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

appellant 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).

DO NOT PUBLISH

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