                                                                             The State of




                            Fourth Court of Appeals
                                   San Antonio, Texas
                                         October 3, 2014

                                       No. 04-14-00661-CR

                                           Clara SOTO,
                                            Appellant

                                                 v.

                                      The STATE of Texas,
                                            Appellee

                  From the 175th Judicial District Court, Bexar County, Texas
                                Trial Court No. 2013CR9377
                         Honorable Mary D. Roman, Judge Presiding


                                         ORDER
       The clerk’s record was filed in this appeal on September 24, 2014. The plea bargain
agreement contained in the clerk’s record states that appellant agreed for punishment to be
assessed at 12 months confinement with a $1,500 fine. The judgment reflects that appellant was
sentenced to two years confinement with no fine assessed.

        On March 24, 2014, the trial court signed a trial court certification stating the underlying
case “is a plea-bargain case, and the defendant has NO right of appeal.” In order for a case to be
a plea-bargain case, however, “the punishment assessed [must] not exceed the punishment
recommended by the prosecutor and agreed to by the defendant.” TEX. R. APP. P. 25.2(a)(2).
Accordingly, based on the documentation provided in the clerk’s record, the trial court’s
certification of defendant’s right of appeal appeared to be defective. See Dears v. State, 154
S.W.3d 610 (Tex. Crim. App. 2005); Sanchez v. State, 109 S.W.3d 760 (Tex. App.—San
Antonio 2003, no pet.). Accordingly, on September 24, 2014, we ordered the trial court to
amend the certification and cause the trial court clerk to file a supplemental clerk’s record
containing the amended certification within twenty days from the date of our order.

        On October 1, 2014, appellant’s attorney responded to our order. First, the appellant’s
attorney requested a supplemental clerk’s record which was filed on October 1, 2014, and
contains a bailiff’s certificate which states that the defendant did not appear on the date of
sentencing. Next, the appellant’s attorney referred the court to the portion of the plea bargain
agreement stating that if the defendant “fails to report for sentencing,” the defendant “is open to
full range of punishment and can’t w/draw plea.” Because the supplemental clerk’s record
establishes that the defendant failed to report for sentencing, the appellant’s attorney contends
the trial court’s certification is accurate because the two year sentence was within the full range
of punishment to which defendant agreed.

       Having reviewed the supplemental clerk’s record and the plea bargain agreement, we
agree with appellant’s attorney. Accordingly, this court’s order dated September 24, 2014 is
WITHDRAWN.

        In view of the foregoing, the trial court’s certification accurately reflects that the criminal
case is a plea-bargain case. See TEX. R. APP. P. 25.2(a)(2). Rule 25.2(d) of the Texas Rules of
Appellate Procedure provides, “The appeal must be dismissed if a certification that shows the
defendant has a right of appeal has not been made part of the record under these rules.” TEX. R.
APP. P. 25.2(d). It is therefore ORDERED that this appeal will be dismissed pursuant to rule
25.2(d) of the Texas Rules of Appellate Procedure unless appellant causes an amended trial court
certification to be filed by October 27, 2014, showing appellant has the right of appeal. See TEX.
R. APP. P. 25.2(d); 37.1; see also Dears v. State, 154 S.W.3d 610 (Tex. Crim. App. 2005);
Daniels v. State,110 S.W.3d 174 (Tex. App.—San Antonio 2003, no pet.). All other appellate
deadlines are SUSPENDED pending our resolution of the certification issue.


                                                       _________________________________
                                                       Catherine Stone, Chief Justice

       IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 3rd day of October, 2014.



                                                       ___________________________________
                                                       Keith E. Hottle
                                                       Clerk of Court
