John Ray Thatcher v. State ( 2019 )

Fourth Court of Appeals
San Antonio, Texas
January 14, 2019
No. 04-19-00017-CR
John Ray THATCHER,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2018CR0442
Honorable Jefferson Moore, Judge Presiding
ORDER
The trial court’s certification in this appeal states this “is a plea-bargain case, and the
defendant has NO right of appeal” and the appeal “is one in which the defendant has waived the
right of appeal.” The clerk’s record contains a copy of the plea bargain entered into between the
State and appellant. The record shows appellant pled nolo contendere to the offense of “evading
arrest/detention w/VE.” Pursuant to the terms of the written plea bargain, punishment was to be
assessed at “5 years” and appellant would be assessed a fine of “$1,500.” However, the trial
court’s judgment shows appellant was sentenced to a term of “7 YRS TDCJ-ID” and a $1,500.00
fine.
Rule 25.2(a)(2) provides that in a criminal case, the trial court shall enter a certification
of the defendant’s right to appeal. TEX. R. APP. P. 25.2(a)(2). The rule further provides that in a
plea bargain case, which is specifically described as “a case in which a defendant’s plea was
guilty or nolo contendere and the punishment did not exceed the punishment recommended by
the prosecutor and agreed to by the defendant,” a defendant may appeal only matters raised by
written motion and rule on before trial or after getting the trial court’s permission to appeal. Id.
Here, however, although, appellant pled nolo contendere pursuant to a plea agreement with the
State, the punishment assessed by the trial court exceeds that recommended by the prosecutor
and agreed to by appellant. Accordingly, the trial court’s certification that appellant has no right
to appeal in this case does not accurately reflect the record before us. See TEX. R. APP. P.
25.2(a)(2), (d); Dears v. State, 154 S.W.3d 610, 614 (Tex. Crim. App. 2005).
Accordingly, we ORDER the trial court to prepare and file an amended trial court
certification that accurately reflects the record, and the district clerk is instructed file a
supplemental clerk’s record containing the amended trial court certification in this court on or
before January 29, 2019. See TEX. R. APP. P. 25.2(d), (f); 34.5(c); 37.1; see Dears, 154 S.W.3d
at 614. All other appellate deadlines are suspended pending resolution of the certification issue.
We order the clerk of this court to serve a copy of this order on the trial court, all
counsel, the district clerk, and the court reporters
_________________________________
Beth Watkins, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 14th day of January, 2019.
___________________________________
KEITH E. HOTTLE,
Clerk of Court