                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-14-00628-CR

                                            James SMITH,
                                              Appellant

                                                 v.
                                                The
                                        The STATE of Texas,
                                              Appellee

                     From the 175th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2014CR4942W
                            Honorable Mary D. Roman, Judge Presiding

PER CURIAM

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: November 5, 2014

DISMISSED FOR LACK OF JURISDICTION

           Pursuant to the terms of his plea-bargain agreement, James Smith pled nolo contendere to

forgery and was placed on deferred adjudication community supervision. He then filed a notice of

appeal from the order placing him on deferred adjudication community supervision. On June 17,

2014, the trial court signed a certification of defendant’s right to appeal stating that this “is a plea-

bargain case, and the defendant has NO right of appeal.” See TEX. R. APP. P. 25.2(a)(2). After

Smith filed a notice of appeal, the trial court clerk sent copies of the certification and notice of
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appeal to this court. See id. 25.2(e). The clerk’s record, which includes the trial court’s Rule

25.2(a)(2) certification, has been filed. See id. 25.2(d).

        “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. 25.2(a)(2). In Hargesheimer v. State, 182 S.W.3d 906, 913 (Tex. Crim. App. 2006),

the court of criminal appeals held that “in a plea-bargain case for deferred adjudication community

supervision, the plea bargain is complete at the time the defendant enters his plea of guilty in

exchange for deferred adjudication community supervision.” Thus, Texas Rule of Appellate

Procedure 25.2(a)(2) “will restrict appeal only when the defendant appeals his placement on

deferred adjudication community supervision pursuant to the original plea.” Id. According to the

court, “[u]nder this circumstance, the trial judge certifying the defendant’s right of appeal may

designate the case on the certification form as ‘a plea-bargain case, and the defendant has NO right

of appeal.’” Id. If, however, the defendant filed written motions that were ruled on before his

placement on deferred adjudication community supervision pursuant to Rule 25.2(a)(2)(A), or

obtained permission from the trial court to appeal his placement on deferred adjudication

community supervision pursuant to Rule 25.2(a)(2)(B), then he would have a right to appeal. Id.

        Here, the clerk’s record, which contains a written plea-bargain agreement, establishes that

in placing Smith on deferred adjudication community supervision, the trial court complied with

the plea-bargain agreement. Further, the clerk’s record does not include a written motion filed and

ruled upon before trial, nor does it indicate that the trial court gave its permission to appeal. The

trial court’s certification, therefore, appears to accurately reflect that this is a plea-bargain case and

that Smith does not have a right to appeal. We must dismiss an appeal “if a certification that shows

the defendant has the right of appeal has not been made part of the record.” TEX. R. APP. P. 25.2(d).



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       We therefore warned Smith that this appeal would be dismissed unless an amended trial

court certification showing that Smith has the right to appeal was made part of the appellate record.

See TEX. R. APP. P. 25.2(d), 37.1; Daniels v. State, 110 S.W.3d 174 (Tex. App.—San Antonio

2003, order). No such amended trial court certification has been filed.

       This appeal is dismissed for lack of jurisdiction.


                                                  PER CURIAM

Do not publish




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