# Fourth Court of Appeals

**San Antonio, Texas**

October 22, 2020

No. 04

- 20

- 00422

- CR

Matthew HOGAN

, Appellant

v.

The STATE of Texas, Appellee

From the 186th Judicial District Court

, Bexar County, Texas

Trial Court No. 2017CR13464

Honorable Jefferson Moore , Judge Presiding



### ORDER

Sitting: Sandee Bryan Ma rion, Chief Justice

Re beca C. Martinez, Justice Patricia O. Alvarez, Justice

The a ppellant entered into a plea bargain with the State, and pled nolo contendere to a felony offense.

The trial court imposed sentence in accordance with the agreement and signed a certificate stating this “is a plea

- bargain case, and the defendant has NO right of appeal” Se e T EX

. R. A PP

. P

. 25.2(a)(2). Appellant timely filed a notice of appeal in which he states “the substance of the appeal was raised by written motion and ruled on before trial.” The clerk’s record, which includes the trial court’s rule 25.2(a)(2) certification and a written plea bargain agreement, has been filed. Se e 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 part of the

record.” I d

.

The clerk’s record establishes the punishment assessed by the court does not exceed the punishment recommended by the prosecutor and agreed to by the defendant. Se e T EX

. R. A PP

. P

. 25.2(a)(2). The clerk’s record does not reflect the trial court gave perm ission to appeal and the only matters raised by written motion filed and ruled on before trial shown by the clerk’s record are (1) motions regarding an investigator, (2) a motion for examination of defendant, (3) a motion for discovery, (4) a motion for St ate to reveal agreement, (5) a motion for witness list, (6)

a motion in limin e , (7) a Brady motion, (8) a motion for discovery of punishment evidence, (9) amotion for continuance, (10) a motion to withdraw as counsel, and (11) a motion to withdraw

defenda nt’s plea. See id

.

The record also appears to support the trial court’s certification that appellant does not have a right to appeal. See Dears v. Stat e , 154 S.W.3d 610 (Tex. Crim. App. 2005) (holding that court of appeals should review clerk’s record t o determine whether trial court’s certification is accurate).

On September 1 1

, 2020

, a ppellant w a s given notice that this appeal w oul d be dismissed pursuant to rule 25.2(d) of the Texas Rules of Appellate Procedure unless, no later than October 12, 202 0 , appellant (1) fil e d a written response, establishing that this is not a plea bargain case or that he has a right to appeal under Rule 25.2(a)(2)(A)

- (C), or (2) obtai n e d an amended certification from the trial court that states appellant has the right to appeal and causes it to be made part of the appellate record. See T EX

. R. A PP

. P

. 25.2(d); Daniels v. Stat e , 110 S.W.3d 174 (Tex. App.

— San Antonio 2003, order) ( e n banc), disp. on merits, No. 04

- 03

- 00176

- CR, 2003 WL 21508347 (July 2, 2003, pet. ref’d) (not designated for publication). Our order also suspende d all appellate deadlines until further order of the court

. Appellant did not respond t o this court’s September 1 1 , 2020, order; therefore, on October 2 1 , 2020, this appeal

was dismissed

.

On October 2 1, 2020, appellant’s appointed counsel, Mr. Michael D. Robbins, filed a motion for rehearing in which he stated appellant “recall[ed] that the trial court orally granted him permission to appeal.” Mr. Robbins asserts complete reporter’s records from the F ebruary 3, 2020 plea hearing and the July 29, 2020 sentencing hearing are necessary to determine whether permission was granted and any app e a l a ble issues were raised at t hose hearings. Mr. Robbins filed the request for a reporter’s record on September 15, 2020

. According to Mr. Robbins, court reporter Roxanne F. Pena took the record from these two hearings.

Ms. Pena is hereby ORDERED to file the reporter’s records from t he February 3, 2020 hearing and the July 29, 2020 hearing with this court no later than November 23, 2020

.

Appellant’s motion for rehearing is HELD IN ABEYANCE pending further order of this

court

.

It is so ORDERED on October 22, 2020

.



### PER CURIAM

ATTESTED TO: _____________________________ Michael A. Cruz,

Clerk of Court