Frankie W. Nealy A/K/A Frankie Neally v. State

• Court: Court of Appeals of Texas
• Decided: December 23, 2008
• Docket: 04-08-00753-CR
• Status: Published

Opinion

i i i i i i

MEMORANDUM OPINION

No. 04-08-00753-CR

Frankie W. NEALY, a.k.a. Frankie Neally, Appellant

v.

The STATE of Texas, Appellee

From the 399th Judicial District Court, Bexar County, Texas Trial Court No. 2006-CR-2894 Honorable Juanita A. Vasquez-Gardner, Judge Presiding

PER CURIAM

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

Delivered and Filed: December 23, 2008

DISMISSED

Pursuant to a plea-bargain agreement, Frankie W. Nealy, a.k.a. Frankie Neally, pled nolo

contendere to the offense of insurance fraud and was sentenced in accordance with the terms of his

plea-bargain agreement. On October 8, 2008, 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 04-08-00753-CR

TEX . R. APP . P. 25.2(a)(2). After Nealy 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).

“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 Nealy 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 Nealy 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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