James Arthur Anthony v. State

• Court: Court of Appeals of Texas
• Decided: July 8, 2009
• Docket: 04-09-00259-CR
• Status: Published

Opinion

i i i i i i

MEMORANDUM OPINION

No. 04-09-00259-CR

James Arthur ANTHONY, Appellant

v.

The STATE of Texas, Appellee

From the 144th Judicial District Court, Bexar County, Texas Trial Court No. 2007-CR-2235 Honorable Sharon MacRae, Judge Presiding

PER CURIAM

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

Delivered and Filed: July 8, 2009

DISMISSED

Pursuant to a plea-bargain agreement, James Arthur Anthony pled nolo contendere to

aggravated sexual assault and true to an enhancement offense and was sentenced to forty years

imprisonment in accordance with the terms of his plea-bargain agreement. On April 1, 2009, the trial

court signed a certification of defendant’s right to appeal stating that this “is a plea-bargain case, and 04-09-00259-CR

the defendant has NO right of appeal.” See TEX . R. APP . P. 25.2(a)(2). After Anthony 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 establishes the punishment assessed by the court does not

exceed the punishment recommended by the prosecutor and agreed to by Anthony. 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 Anthony permission to appeal. See id. The trial court’s certification,

therefore, appears to accurately reflect that this is a plea-bargain case and that Anthony 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 Anthony that this appeal would be dismissed pursuant to Texas Rule

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

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, 176 (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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