Frederick Johnson v. State ( 2018 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-17-00844-CR
Frederick JOHNSON,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2017CR9050
Honorable Mary D. Roman, Judge Presiding
PER CURIAM
Sitting: Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: March 14, 2018
APPEAL DISMISSED
Appellant entered into a plea bargain with the State, pursuant to which appellant pleaded
nolo contendere to the offense of felon in possession of a firearm. 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). The certificate also stated
this is a case “in which the defendant has waived the right of appeal.” Appellant 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 id. R. 25.2(d).
 04-17-00844-CR
“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, or (B) after getting the trial court’s permission to
appeal.” Id. R. 25.2(a)(2). 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.” Id. R. 25.2(d). 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. See id. R. 25.2(a)(2). The clerk’s
record also does not include a written motion filed and ruled upon before trial; nor does it indicate
the trial court gave appellant permission to appeal. See id. The trial court’s certification therefore
appears to accurately reflect that this is a plea bargain case and appellant 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).
Therefore, on February 9, 2018, we gave appellant notice that this appeal would be
dismissed pursuant to Rule 25.2(d) of the Texas Rules of Appellate Procedure unless an amended
certification showing that appellant has the right to appeal is made part of the appellate record on
or before March 12, 2018. See TEX. R. APP. P. 25.2(d); See id. R. 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). On February 22, 2018,
appellant’s counsel filed a response, stating he has reviewed the clerk’s record and has determined
this is a plea bargain case in which appellant has no right of appeal. We therefore dismiss this
appeal. See TEX. R. APP. P. 25.2(d).
PER CURIAM
DO NOT PUBLISH
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