Jimmy Eugene Johns, Appellant v. The State of Texas, State (2015)

MEMORANDUM OPINION 1

Appellant Jimmy Eugene Johns attempts to appeal his felony conviction for driving while intoxicated.²  On March 2, 2015, we issued an order abating this appeal.   In the order, we stated that based on our review of the record, we were concerned about whether the appeal should be dismissed because appellant had entered a plea bargain.   See Tex.R.App. P. 25.2(a)(2), (d);  Chavez v. State, 183 S.W.3d 675, 680 (Tex.Crim.App.2006).   We explained that appellant had entered into a plea bargain because in exchange for his guilty plea, the State had waived one of the indictment's enhancement allegations.³  We abated the appeal, instructing the trial court to “file an amended certification of appellant's right to appeal showing that this is a plea-bargained case.”   Also, we ordered the trial court to “indicate whether any matters were raised by written motion filed and ruled on before trial or whether the trial court ha[d] given permission to appeal.”

We have received a supplemental clerk's record from the abatement.   The supplemental clerk's record contains an amended certification of appellant's right to appeal, which states in part that this is “a plea-bargain case, and [appellant] has NO right of appeal.”   The amended certification contains the signature of appellant's counsel and a remark that appellant refused to sign it.

An appeal “must be dismissed 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).  Under rule of appellate procedure 25.2, we must “dismiss a prohibited appeal without further action, regardless of the basis for the appeal.” ⁴  Chavez, 183 S.W.3d at 680.   Because the trial court has certified that appellant has no right of appeal, that the court has not given permission to appeal, and that appellant did not raise matters by written motion filed and ruled on before trial, we dismiss the appeal.   See Tex.R.App. P. 25.2(a)(2), (d), 43.2(f);  Chavez, 183 S.W.3d at 680.

FOOTNOTES

1.   See Tex.R.App. P. 47.4.

2.   See Tex. Penal Code Ann. §§ 49.04(a), .09(b)(2) (West Supp.2014).

3.    1 The State proceeded on a repeat offender allegation instead of a habitual offender allegation, so appellant faced a punishment range of two to twenty years' confinement instead of twenty-five to ninety-nine years' confinement.   See Tex. Penal Code Ann. § 12.33(a) (West 2011), § 12.42(a), (d) (West Supp.2014).   This agreed reduction in the range of punishment qualified as a plea bargain.   See Carender v. State, 155 S.W.3d 929, 931 (Tex.App.—Dallas 2005, no pet.);   see also King v. State, No. 02–13–00583–CR, 2014 WL 3536962, at *1 (Tex.App.—Fort Worth July 17, 2014, no pet.) (mem. op., not designated for publication).

4.   Through counsel, appellant filed letter after the trial court amended its certification. The letter does not show adequate grounds for continuing the appeal.

TERRIE LIVINGSTON, CHIEF JUSTICE