Ivy Bennett Newton v. State

• Court: Court of Appeals of Texas
• Decided: November 11, 2009
• Docket: 04-09-00636-CR
• Status: Published

Opinion

i i i i i i

MEMORANDUM OPINION

No. 04-09-00636-CR

Ivy Bennett NEWTON, Appellant

v.

The STATE of Texas, Appellee

From the 175th Judicial District Court, Bexar County, Texas Trial Court No. 2007-CR-0930 Honorable Mary Román Judge Presiding

PER CURIAM

Sitting: Catherine Stone, Chief Justice Karen Angelini, Justice Marialyn Barnard, Justice

Delivered and Filed: November 11, 2009

DISMISSED

Appellant Ivy Bennett Newton pleaded nolo contendere to “deadly conduct-firearm” pursuant

to a plea bargain agreement. As part of his plea-bargain, appellant signed a separate “Waiver of

Appeal.” The trial court imposed sentence and signed a certificate 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. The clerk’s record, which includes the plea bargain agreement and the trial 04-09-00636-CR

court’s Rule 25.2(a)(2) certification, has been filed. See TEX . R. APP . P. 25.2(d). 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.” Id.

The court gave appellant notice that the appeal would be dismissed unless an amended trial

court certification showing he has the right to appeal were made part of the appellate record within

thirty days. See TEX . R. APP . P. 25.2(d); 37.1; Daniels v. State, 110 S.W.3d 174 (Tex. App.–San

Antonio 2003, order), disp. on merits, No. 04-03-00176-CR, 2003 WL 21508347 (July 2, 2003, pet.

ref’d) (not designated for publication). Appellant’s appointed appellate counsel filed a written

response, stating she has reviewed the record and can find no right of appeal. After reviewing the

record and counsel’s notice, we agree that appellant does not have a right to appeal. 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). We therefore dismiss this appeal.

TEX . R. APP . P. 25.2(d).

Do not publish

-2-