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
04-14-00628-CR
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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04-14-00628-CR
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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James Smith v. State
Combined Opinion