Elvin Laron Burnes v. State

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-14-00298-CR

Elvin Laron BURNES, Appellant

v. The STATE The STATE of Texas, Appellee

From the 227th Judicial District Court, Bexar County, Texas Trial Court No. 2013CR5493 Honorable Philip A. Kazen, Jr., Judge Presiding

PER CURIAM

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

Delivered and Filed: June 18, 2014

DISMISSED

Pursuant to a plea-bargain agreement, Elvin Burnes pled nolo contendere to having

committed aggravated assault and was sentenced to ten years imprisonment and a fine of $1500 in

accordance with the terms of his plea-bargain agreement. On January 27, 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 Burnes filed a notice of

appeal, the trial court clerk sent copies of the certification and notice of appeal to this court. See 04-14-00298-CR

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 Burnes 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 Burnes that this appeal would be dismissed pursuant to Texas Rule

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