The State of TexasAppellee/s



# Fourth Court of Appeals **San Antonio, Te xas** 

April 7, 2015

N o. 04

- 15

- 00197

- CR

Michael S. EISENHAUER

, Appellant

v.

THE STATE OF TEXAS, App ellee

From the 186th Judicial District Court, Bexar County, Texas Trial Court No. 2014CR0043 Honorable Maria Teresa Herr, Judge Presiding



### ORDER

Michael S. Eisenhauer entered into a plea bargain with the State, pursuant to which he pleaded guilty to a third offense of driving while intoxicated

. The trial court imposed sentence in accordance with the agreement on April 4, 2014, and signed a certificate stating this “is a plea

bargain case, and the defendant has NO right of appeal.” See T EX

. R. A PP

. P. 25.2(a)(2). A notice of appeal was due May 5 , 2014, or the notice and a motion for extension of time to file, were due May 20, 2014. T EX

. R. A PP

. P. 26.2(a)(1)

, 26.3. Eisenhauer did not file his notice of appeal until March 24, 2015.

The clerk’s recor d also includes the trial court’s Rule 25.2(a)(2) certification and the written plea bargain agreement

. See T EX

. R. A PP

. 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 pa rt 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 T EX

. R. A PP

. P. 25.2(a)(2). The record also appears to support the trial co urt’s certification that Eisenhauer 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).

Eisenhauer is given notice that this appeal will be dismissed unless, by April 17, 2015

, (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 m ade 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) ; T EX

. R. A PP

. 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 a supplemental clerk’s record is required to show the appeal is timely, Eisenhauer must request a supplemental record from the trial court clerk and file a copy of the request with this
court. If appellant fails to satisfactorily respond to this order within the time provided, the appeal will be dismissed.

We order all appellate deadlines 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

co urt on this 7th day of April, 2015

.

___________________________________ Keith E. Hottle Clerk of Court