James Russell Ishmael v. State

• Court: Court of Appeals of Texas
• Decided: March 4, 2009
• Docket: 06-09-00055-CR
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-09-00055-CR

JAMES RUSSELL ISHMAEL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 8th Judicial District Court

Hopkins County, Texas

Trial Court No. 0719545

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Justice Moseley

MEMORANDUM OPINION

James Russell Ishmael has filed a notice of appeal from his conviction on his plea of guilty pursuant to a plea bargain. He was convicted of a third offense of driving while intoxicated and sentenced to five years' imprisonment. Sentence was imposed on January 30, 2009, and his notice of appeal was filed on February 23, 2009. We have received a record containing a certification of right to appeal which indicates both that this is a plea-bargain case, and thus Ishmael has no right of appeal, and that he has waived his right of appeal. The record also contains a copy of the plea agreement, which is consistent with the sentence actually imposed.

Unless a certification, showing that a defendant has the right of appeal, is in the record, we must dismiss the appeal. See Tex. R. App. P. 25.2(d). Because the trial court's certification affirmatively shows Ishmael has no right of appeal, and because the record before us does not reflect that the certification is incorrect, see Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005), we must dismiss the appeal.

We dismiss the appeal for want of jurisdiction.

Bailey C. Moseley

Justice

Date Submitted: March 3, 2009

Date Decided: March 4, 2009

Do Not Publish

g to review, his issue on appeal is overruled.

We affirm the judgment.

Donald R. Ross

Date Submitted: September 5, 2006

Date Decided: December 14, 2006

1. McDaniel submitted, as attachments to his motion for new trial, articles of limited partnership for "NE-TEX CONSTRUCTION, LTD." and the 2005-2006 registration renewal, indicating ownership by "NE-TEX CONSTRUCTION LTD.," for the truck that had caused the damage in 2004. The motion for new trial was overruled by operation of law. McDaniel does not appeal this issue, thus not preserving the new evidence complaint. See Tex. R. App. P. 33.1(b).