Damian L. Johnson v. State

Opinion

MEMORANDUM OPINION No. 04-12-00058-CR

Damian L. JOHNSON, Appellant

v.

The STATE of Texas, Appellee

From the 227th Judicial District Court, Bexar County, Texas Trial Court No. 2011CR6303 Honorable Philip A. Kazen, Jr., Judge Presiding

PER CURIAM

Sitting: Karen Angelini, Justice Sandee Bryan Marion, Justice Phylis J. Speedlin, Justice

Delivered and Filed: April 11, 2012

DISMISSED

Pursuant to a plea-bargain agreement, Damian L. Johnson pled nolo contendere to

aggravated assault against a public servant and was sentenced to twenty-five years in prison and

a fine of $1500 in accordance with the terms of his plea-bargain agreement. 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 Johnson filed a

notice of appeal, the trial court clerk sent copies of the certification and notice of appeal to this 04-12-00058-CR

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 Johnson 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 Johnson that this appeal would be dismissed pursuant to Texas

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

Johnson 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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