Sean Michael Foxx v. the State of Texas

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-23-00691-CR

Sean Michael FOXX, Appellant

v.

The STATE of Texas, Appellee

From the 290th Judicial District Court, Bexar County, Texas Trial Court No. 2022CR11563 Honorable Jennifer Peña, Judge Presiding

Sitting: Irene Rios, Justice Beth Watkins, Justice Liza A. Rodriguez, Justice

Delivered and Filed: September 27, 2023

DISMISSED

Pursuant to a plea-bargain agreement, appellant Sean Michael Foxx pled nolo contendere

to one count of possession of a controlled substance in an amount of four grams or more but less

than two hundred grams and, in accordance with the terms of his plea-bargain agreement, was

sentenced to four years’ imprisonment. On June 26, 2023, the trial court signed a certification of

defendant’s right to appeal stating this “is a plea-bargain case, and the defendant has NO right of

appeal.” See TEX. R. APP. P. 25.2(a)(2). After Foxx filed a notice of appeal, the trial court clerk 04-23-00691-CR

sent copies of the certification and notice of appeal to this court. See id. 25.2(e). The clerk’s

record, which includes the trial court’s certification, has been filed. See id. 25.2(d).

“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.” Id. 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 Foxx. See

id. The clerk’s record does not include a written motion filed and ruled upon before trial; nor does

it indicate that the trial court gave its permission to appeal. See id. Thus, the trial court’s

certification appears to accurately reflect that this is a plea-bargain case and Foxx 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 . . . .” Id. 25.2(d).

On August 23, 2023, we informed Foxx that this appeal would be dismissed pursuant to

Rule 25.2(d) of the Texas Rules of Appellate Procedure unless an amended trial court certification

showing that Foxx has the right to appeal was made part of the appellate record. See TEX. R. APP.

P. 25.2(d), 37.1; Daniels v. State, 110 S.W.3d 174, 177 (Tex. App.—San Antonio 2003, no pet.).

On September 6, 2023, Foxx’s court-appointed appellate counsel filed a response stating Foxx has

no right to appeal and conceding this appeal should be dismissed. Further, an amended trial court

certification showing Foxx has a right to appeal has not been filed and made part of the appellate

record. Therefore, this appeal is dismissed pursuant to Rule 25.2(d) of the Texas Rules of

Appellate Procedure. See TEX. R. APP. P. 25.2(d)

Do not publish

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