Larry Ray Capko v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 30, 2024
• Docket: 02-24-00145-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-24-00145-CR ___________________________

LARRY RAY CAPKO, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 43rd District Court Parker County, Texas Trial Court No. CR22-0831

Before Sudderth, C.J.; Kerr and Birdwell, JJ. Memorandum Opinion by Chief Justice Sudderth MEMORANDUM OPINION

Appellant Larry Ray Capko attempts to appeal his conviction, but he waived

his right of appeal when he entered into a plea bargain with the State.

“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, (B) after getting the

trial court’s permission to appeal, or (C) where the specific appeal is expressly

authorized by statute.” Tex. R. App. P. 25.2(a)(2); see Tex. Code Crim. Proc. Ann. art.

44.02. The trial court must file a certification of the defendant’s right of appeal,

clarifying whether the case involved a plea bargain and whether the defendant waived

his right of appeal. See Tex. R. App. P. 25.2(a)(2), (d).

Capko’s judgment of conviction reflects the terms of his plea bargain, and the

trial court’s certification confirms that “the defendant has waived the right of appeal”

and that this “is a plea-bargain case, and the defendant has NO right of appeal.” See

id. The certification here was signed not only by the trial court but also by Capko and

by his trial counsel. See Tex. R. App. P. 25.2(d).

Because criminal appeals “must be dismissed if a certification that shows the

defendant has the right of appeal has not been made part of the record,” see id., we

informed Capko that we could dismiss his appeal unless, within 10 days, he showed

grounds for continuing it. See Tex. R. App. P. 44.3. More than 20 days have passed

but we have not received a response.

Accordingly, we dismiss Capko’s appeal. See Tex. R. App. P. 25.2(d), 43.2(f).

2 /s/ Bonnie Sudderth

Bonnie Sudderth Chief Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: May 30, 2024