
In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-09-00310-CR
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BENNIE DALE WHALEY, Appellant

V.

THE STATE OF TEXAS, Appellee




On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. 08-03579




     MEMORANDUM OPINION
           On April 17, 2009, the trial court sentenced Bennie Dale Whaley on a conviction for
sexual assault of a child.  Whaley filed a notice of appeal on July 10, 2009.  The trial court
entered a certification of the defendant’s right to appeal in which the court certified that this
is a plea-bargain case and the defendant has no right of appeal.  See Tex. R. App. P.
25.2(a)(2).  The district clerk has provided the trial court’s certification to the Court of
Appeals.  On July 14, 2009, we notified the parties that we would dismiss the appeal unless
the appellant established grounds for continuing the appeal.  The appellant filed a response
but failed to establish that the trial court’s certification should be amended.  Because the
record does not contain a certification that shows the defendant has the right of appeal, we
must dismiss the appeal.  See Tex. R. App. P. 25.2(d).  Accordingly, we dismiss the appeal.
           APPEAL DISMISSED. 
 
                                                                             __________________________________
                                                                                               HOLLIS HORTON
      Justice

Opinion Delivered August 12, 2009
Do Not Publish
Before McKeithen, C.J., Gaultney and Horton, JJ.

Dissenting Opinion
           Respectfully, I suggest we should not dismiss this appeal without a record.  Appellant
challenges the process by which he was sentenced in the trial court, and he argues the
certification was signed before the sentencing hearing and should not preclude his appeal. 
The record would permit review and analysis of the appellant’s arguments.  See Dears v.
State, 154 S.W.3d 610, 614-615 (Tex. Crim. App. 2005); see also Tex. R. App. P. 47.1.

                                                                                        ___________________________
                                                                                                   DAVID GAULTNEY
                                                                                                                Justice

Dissent Delivered
August 12, 2009


















