Fourth Court of Appeals
San Antonio, Texas
December 14, 2017
No. 04-17-00804-CR
James MCDONALD,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR12465
Honorable Catherine Torres-Stahl, Judge Presiding
ORDER
James McDonald entered into a plea bargain with the State, pursuant to which he pleaded
nolo contendere to aggravated sexual assault of a child. The trial court imposed sentence in
accordance with the agreement on October 11, 2017, and signed a certificate stating this “is a
plea-bargain case, and the defendant has NO right of appeal.” See TEX. R. APP. P. 25.2(a)(2).
McDonald did not file a motion for new trial. Therefore, a notice of appeal was due November
10, 2017, or the notice and a motion for extension of time to file, were due fifteen days later on
November 28, 2011. Tex. R. App. P. 26.2(a)(1), 26.3. The envelope in which the notice of
appeal was mailed to this court bears a postmark of November 14, 2017 and also contains the
following notation: “Processed Nov 13 2017 BCADC Mailroom Dept.” McDonald did not file
a motion for extension of time to file the notice of appeal. See Tex. R. App. P. 26.3.
The clerk’s record includes the trial court’s Rule 25.2(a)(2) certification and the written
plea bargain agreement. See TEX. R. APP. P. 25.2(d). This court must dismiss an appeal “if a
certification that shows the defendant has the right of appeal has not been made part of the
record.” Id. The record establishes the punishment assessed by the court does not exceed the
punishment recommended by the prosecutor and agreed to by the defendant. See TEX. R. APP. P.
25.2(a)(2). The record also appears to support the trial court’s certification that McDonald does
not have a right to appeal. See Dears v. State, 154 S.W.3d 610 (Tex. Crim. App. 2005) (holding
that court of appeals should review clerk’s record to determine whether trial court’s certification
is accurate).
McDonald is given notice that this appeal will be dismissed unless, by January 3, 2018,
(1) he files a response establishing that the notice of appeal was timely filed by mail and (2) an
amended certification showing that he has the right to appeal is made part of the appellate record.
See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996) (holding that timely notice of
appeal is necessary to invoke court of appeals’ jurisdiction); TEX. R. APP. P. 25.2(d); 37.1;
Daniels v. State, 110 S.W.3d 174 (Tex. App.—San Antonio 2003, order), disp. on merits, No.
04-03-00176-CR, 2003 WL 21508347 (July 2, 2003, pet. ref’d) (not designated for publication).
If appellant fails to satisfactorily respond within the time provided, the appeal will be dismissed.
We order all appellate deadlines are suspended until further order of the court. We
further order the clerk of this court to serve copies of this order on the attorneys of record and
the court reporter.
_________________________________
Luz Elena D. Chapa, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 14th day of December, 2017.
___________________________________
Keith E. Hottle
Clerk of Court