Kenneth Batts v. State

Opinion

MEMORANDUM OPINION No. 04-11-00630-CR

Kenneth BATTS, Appellant

v.

The STATE of Texas, Appellee

From the 226th Judicial District Court, Bexar County, Texas Trial Court No. 2010CR12771 Honorable Sid L. Harle, Judge Presiding

PER CURIAM

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

Delivered and Filed: October 26, 2011

DISMISSED

Kenneth Batts entered into a plea bargain with the State, pursuant to which he pleaded

nolo contendere to a felony offense. The trial court imposed sentence in accordance with the

agreement and signed a certificate stating this “is a plea-bargain case, and the defendant has NO

right of appeal.” See TEX. R. APP. P. 25.2(a)(2). Batts timely filed a notice of appeal. The clerk’s

record, which includes the trial court’s Rule 25.2(a)(2) certification and a written plea bargain

agreement, has been filed. See TEX. R. APP. P. 25.2(d). 04-11-00630-CR

The clerk’s record establishes the punishment assessed by the court does not exceed the

punishment recommended by the prosecutor and agreed to by the defendant and that the trial

court denied permission to appeal. See TEX. R. APP. P. 25.2(a)(2). We have reviewed the clerk’s

record, and the trial court’s certification appears to accurately state that this is a plea bargain case

and Batts 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). 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.” TEX. R. APP. P.

25.2(d).

On September 13, 2011, we gave Batts notice that the appeal would be dismissed unless

an amended trial court certification showing he has the right to appeal has been made part of the

appellate record by October 13, 2011. 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). An amended

certification showing Batts has the right to appeal has not been filed.

We therefore dismiss this appeal. TEX. R. APP. P. 25.2(d).

DO NOT PUBLISH

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