John B. Hayes v. State

Opinion

i i i i i i

MEMORANDUM OPINION

No. 04-10-00006-CR

John B. HAYES, Appellant

v.

The STATE of Texas, Appellee

From the 399th Judicial District Court, Bexar County, Texas Trial Court No. 2009-CR-5289 Honorable Juanita Vasquez-Gardner, Judge Presiding

Sitting: Catherine Stone, Chief Justice Steven C. Hilbig, Justice Marialyn Barnard, Justice

Delivered and Filed: February 3, 2010

DISMISSED

John B. Hayes pleaded nolo contendere to aggravated assault with a deadly weapon and

pleaded true to an enhancement allegation pursuant to a plea bargain agreement. As part of his plea

bargain, Hayes signed a separate waiver of appeal. The trial court imposed sentence in accordance

with the agreement 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). Hayes timely filed a notice of appeal. The 04-10-00006-CR

clerk’s record, which includes the plea bargain agreement and the trial 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 Hayes 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). Hayes’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 Hayes 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Do not publish

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