Dexstell Murphy v. State

• Court: Court of Appeals of Texas
• Decided: June 15, 2016
• Docket: 12-16-00137-CR
• Status: Published

Opinion

NO. 12-16-00136-CR 12-16-00137-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DEXSTELL MURPHY, § APPEALS FROM THE 7TH APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS, APPELLEE § SMITH COUNTY, TEXAS

MEMORANDUM OPINION PER CURIAM Pursuant to a plea bargain, Appellant Dexstell Murphy pleaded guilty to two separate charges of burglary of a habitation, a first degree felony. As part of the plea bargain, the prosecutor recommended that Appellant be sentenced to imprisonment for forty-five years for each charge, with the sentences to run concurrently. We have received the trial court’s certification in each 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). Appellant timely filed a notice of appeal in each case. The clerk’s record in each appeal, which includes the trial court’s certification and a written plea bargain agreement, has been filed. See TEX. R. APP. P. 25.2(d). Each clerk’s record establishes the punishment assessed by the trial court does not exceed the punishment recommended by the prosecutor and agreed to by Appellant and does not indicate the trial court gave Appellant permission to appeal. See TEX. R. APP. P. 25.2(a)(2). Nor does either clerk’s record include any pretrial motions that were filed by Appellant and denied by the trial court. See id. Based on our review of the clerk’s record in each appeal, the trial court’s certification appears to accurately state that each is a plea bargain case and Appellant does not have the right to appeal.1 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). 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.” TEX. R. APP. P. 25.2(d). Accordingly, the appeals are dismissed. Opinion delivered June 15, 2016. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

1 We also note that the plea papers signed in each case by Appellant and his counsel include a waiver of Appellant’s right to appeal.

2 COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JUNE 15, 2016

NO. 12-16-00136-CR

DEXSTELL MURPHY, Appellant V. THE STATE OF TEXAS, Appellee

Appeal from the 7th District Court of Smith County, Texas (Tr.Ct.No. 007-1668-15)

THIS CAUSE came to be heard on the appellate record; and the same being considered, it is the opinion of this court that this appeal should be dismissed. It is therefore ORDERED, ADJUDGED and DECREED by this court that this appeal be, and the same is, hereby dismissed; and that this decision be certified to the court below for observance. By per curiam opinion. Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J. COURT OF APPEALS

NO. 12-16-00137-CR

Appeal from the 7th District Court of Smith County, Texas (Tr.Ct.No. 007-0169-16)

THIS CAUSE came to be heard on the appellate record; and the same being considered, it is the opinion of this court that this appeal should be dismissed. It is therefore ORDERED, ADJUDGED and DECREED by this court that this appeal be, and the same is, hereby dismissed; and that this decision be certified to the court below for observance. By per curiam opinion. Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.