Jermaine Thomas Witty v. State

• Court: Court of Appeals of Texas
• Decided: January 16, 2019
• Docket: 04-18-00910-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-18-00910-CR

Jermaine Thomas WITTY, Appellant

v.

The STATE of Texas, Appellee

From the 226th Judicial District Court, Bexar County, Texas Trial Court No. 2017CR13722 Honorable Mark R. Luitjen, Judge Presiding

PER CURIAM

Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice

Delivered and Filed: January 16, 2019

DISMISSED

The trial court’s certification in this appeal states: “[T]his criminal case is a plea-bargain

case, and the defendant has NO right of appeal.”

“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.” TEX. R. APP. P. 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 04-18-00910-CR

written motion filed and ruled upon before trial, nor does it indicate 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 appellant 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.” TEX. R. APP. P. 25.2(d). We issued an order stating

this appeal would be dismissed unless an amended trial court certification was made part of the

appellate record by December 27, 2018. See TEX. R. APP. P. 25.2(d); Daniels v. State, 110 S.W.3d

174 (Tex. App.—San Antonio 2003, no pet.). On December 28, 2018, appellant filed a second

notice of appeal indicating that a basis for the appeal is “permission to appeal” without indicating

whether permission to appeal has been granted or denied by the trial court. Appellant has not filed

an amended trial court certification demonstrating the trial court has granted permission to appeal

or that appellant otherwise has a right of appeal.

Accordingly, this appeal is dismissed pursuant to Rule 25.2(d).

DO NOT PUBLISH

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