DISMISS; Opinion Filed July 24, 2013.




                                              In The
                                        Court of Appeals
                                 Fifth District of Texas at Dallas

                                        No. 05-09-00758-CR

                             DONALD GENE BLANTON, Appellant
                                           V.
                               THE STATE OF TEXAS, Appellee

                              On Appeal from the 86th District Court
                                    Kaufman County, Texas
                                  Trial Court Cause No. 15189

                         MEMORANDUM OPINION ON REMAND
                           Before Justices Moseley, O'Neill, and Lewis
                                   Opinion by Justice Moseley
          This case was remanded to us by the Texas Court of Criminal Appeals. In six points of

error, appellant Donald Gene Blanton asserts, among other things, that the trial court incorrectly

determined he has no right to appeal. The background and facts of the case are well-known to

the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in

law, we issue this memorandum opinion. TEX. R. APP. P. 47.2(a), 47.4. We overrule Blanton’s

first point of error, decline to consider his second through sixth points of error, and dismiss his

appeal.

          We adopt the court of criminal appeals’ recitation of the factual background of this case,

see Blanton v. State, 369 S.W.3d 894, 896-97 (Tex. Crim. App. 2012), and provide only the facts

necessary to resolve the issues in this appeal.
           Blanton pleaded guilty to burglary of a habitation in July 1987. In the plea bargain, he

agreed to a seven year sentence and restitution in the amount of $500. The trial court accepted

the plea and entered judgment.                        The trial court subsequently entered three nunc pro tunc

judgments dated August 1, 1988, March 20, 2009, and June 12, 2009. Following the third nunc

pro tunc judgment, Blanton filed this appeal.

           During the prior appeal, we determined we lacked jurisdiction because Blanton’s notice

of appeal was untimely. However, the court of criminal appeals reversed and remanded the case

“to the court of appeals to consider the merits of [Blanton’s] appeal.” See id. at 896. Later in the

opinion, the court instructs us “to consider the merits of [Blanton’s] right to appeal the June 12,

2009 nunc pro tunc judgment” pursuant to Texas Rule of Appellate Procedure 25.2(a)(2)(A-B).1

See id. at 904.

           Rule 25.2(a)(2) addresses a defendant’s right to appeal in a criminal case:

                   Of the Defendant. A defendant in a criminal case has the right of appeal
           under Code of Criminal Procedure article 44.02 and these rules. The trial court
           shall enter a certification of the defendant’s right of appeal each time it enters a
           judgment of guilt or other appealable order. In a plea bargain case—that is, 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:
                   (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.


           TEX. R. APP. P. 25.2(a)(2)(A-B). We must dismiss an appeal if a certification showing

the defendant has the right to appeal is not part of the appellate record or unless we conclude the

trial court’s certification is defective. See Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App.




     1
       Although the court of criminal appeals determined that this Court “had jurisdiction to consider the merits of Appellant’s appeal,” that
determination was limited to whether Blanton timely filed his notice of appeal; the court of criminal appeals’ conclusion as to jurisdiction did not
consider whether Blanton had a right to appeal pursuant to rule 25.2(a). See Blanton, 369 S.W.3d at 904.



                                                                       –2–
2005). A certification is defective if it is correct in form, but is inaccurate when compared to the

record. See id. at 614.

       The clerk’s record shows Blanton entered a plea of guilty to the charged offense below,

and that the punishment assessed did not exceed that recommended by the prosecutor and agreed

to by the defendant. Thus, this is an appeal of a plea bargain case. See TEX. R. APP. P.

25.2(a)(2) (plea-bargain case is “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.”). Additionally, the record shows Blanton is not appealing matters that were

raised by written motion filed and ruled on before trial or after getting the trial court’s permission

to appeal. See TEX. R. APP. P. 25.2(a)(2)(A-B). Indeed, the clerk’s record contains the trial

court’s certification regarding Blanton’s right to appeal, dated after the third nunc pro tunc

judgment, which states that this “[i]s a plea-bargain case, and the defendant has NO right of

appeal.”

       Blanton argues that the trial court improperly concluded he had no right of appeal and

this Court should instruct the trial court to certify the appeal as “not a plea-bargain case, and the

defendant has the right of appeal.” In other words, he asserts the certificate is inaccurate. The

basis of his argument is that he is appealing issues arising from the entry of the third nunc pro

tunc judgment, not the underlying conviction or the plea bargain. However, the issues Blanton

seeks to assert on appeal relate to the terms of the plea agreement and the entry of a judgment

nunc pro tunc correcting the judgment entered based on his plea agreement.

       Based on the record before us, we conclude that the record contains no certificate

showing Blanton has a right to appeal and that the trial court’s certificate stating Blanton does

not have a right to appeal is not defective. See Dears, 154 S.W.3d at 613. As a result, we must

dismiss the appeal. See Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006) (“A court

                                                 –3–
of 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.”).

       We dismiss the appeal. See TEX. R. APP. P. 25.2(a)(2)(A-B).




                                                    /Jim Moseley/
                                                    JIM MOSELEY
                                                    JUSTICE




Do Not Publish
TEX. R. APP. P. 47


090758RF.U05




                                              –4–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

DONALD GENE BLANTON, Appellant                        On Appeal from the 86th District Court,
                                                      Kaufman County, Texas
No. 05-09-00758-CR         V.                         Trial Court Cause No. 15189.
                                                      Opinion delivered by Justice Moseley.
THE STATE OF TEXAS, Appellee                          Justices O'Neill and Lewis participating.

       Based on the Court’s opinion of this date, we DISMISS the appeal pursuant to Texas
Rule of Appellate Procedure 25.2(a)(2).


Judgment entered this 24th day of July, 2013.




                                                      /Jim Moseley/
                                                      JIM MOSELEY
                                                      JUSTICE




                                                –5–
