Steve Gaither v. State

• Court: Court of Appeals of Texas
• Decided: September 25, 2015
• Docket: 07-15-00077-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-15-00077-CR

STEVE GAITHER, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 364th District Court Lubbock County, Texas Trial Court No. 2013-438,077, Honorable William R. Eichman II, Presiding

September 25, 2015

MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.

Appellant, Steve Gaither, seeks to appeal a plea bargained judgment of

conviction for the offense of possession of a controlled substance (cocaine) in an

amount of less than one gram1 in a drug-free zone.2 Appellant further pled true to one

prior felony conviction, which enhanced the applicable punishment range to that of a

1 See TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West 2010). 2 See id. § 481.134(b) (West Supp. 2014). second-degree felony.3 In accordance with the terms of the plea bargain, appellant was

sentenced to twenty years confinement in the Institutional Division of the Texas

Department of Criminal Justice. Because appellant has no right of appeal, we will

dismiss.

An appeal must be dismissed unless a certification showing that the defendant

has the right of appeal has been made part of the record. TEX. R. APP. P. 25.2(d). The

trial court noted on “Trial Court’s Certification of Defendant’s Right of Appeal” that this

was “a plea-bargain case and the defendant has NO right of appeal.” Based upon our

review of the record, we find that appellant voluntarily, knowingly, and intelligently

entered into a plea bargain and that the terms of this plea bargain were accepted by the

trial court. See Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005).

By letter dated June 30, 2015, this Court notified appellant that the certification of

defendant’s right of appeal indicated that this was a plea-bargain case and that

appellant had no right of appeal. This notification further advised appellant that the

appeal must be dismissed unless an amended certification reflecting that appellant has

the right of appeal is received. Appellant was given until July 20 to file a response. On

July 21, appellant requested an extension of time to file his response, which extended

the deadline for appellant’s response to September 11. To date, appellant has failed to

file his response or an amended certification.

Because appellant has no right of appeal, we must dismiss this appeal. See

Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006) (en banc) (“A court of

3 See TEX. PENAL CODE ANN. § 12.42(a) (West Supp. 2014).

2 appeals, while having jurisdiction to ascertain whether an appellant who plea-bargained

is permitted to appeal by Rule 25.2(a)(2), must dismiss a prohibited appeal without

further action, regardless of the basis for the appeal.”).

Accordingly, we dismiss the appeal for want of jurisdiction. Any pending motions

are dismissed as moot.

Per Curiam

Do not publish.