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 Marion, Chief Justice

 Rebeca C. Martinez, Justice

 Patricia O. Alvarez, Justice

The appellant 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” See TEX. R. APP. 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. 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 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. See TEX. R. APP.

P. 25.2(a)(2). The clerk’s record does not reflect the trial court gave permission 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 State to reveal agreement, (5) a motion for witness list, (6) 

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

defendant’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. 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).

On September 11, 2020, appellant was given notice that this appeal would be dismissed 

pursuant to rule 25.2(d) of the Texas Rules of Appellate Procedure unless, no later than October 

12, 2020, appellant (1) filed 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) obtained 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 TEX. R. APP. P. 25.2(d); Daniels v. State, 110 S.W.3d 174 

(Tex. App.—San Antonio 2003, order) (en 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 

suspended all appellate deadlines until further order of the court. Appellant did not 

respond to this court’s September 11, 2020, order; therefore, on October 21, 2020, this appeal 

was dismissed.

On October 21, 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 February 

3, 2020 plea hearing and the July 29, 2020 sentencing hearing are necessary to determine 

whether permission was granted and any appealable issues were raised at those 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 the 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