Kimberly M. Borjon v. State

MEMORANDUM OPINION

No. 04-11-00266-CR

Kimberly M. BORJON,

Appellant v.

The STATE of Texas,

Appellee

From the 175th Judicial District Court, Bexar County, Texas Trial Court No. 2009CR12996A

Honorable Mary D. Román, Judge Presiding PER CURIAM

Sitting: Catherine Stone, Chief Justice

Karen Angelini, Justice

Marialyn Barnard, Justice

Delivered and Filed: June 1, 2011

DISMISSED

Appellant Kimberly M. Borjon pleaded guilty to the offense of aggravated robbery pursuant to a plea bargain agreement. As part of her plea bargain, appellant signed a separate “Waiver of Appeal.” The trial court imposed sentence and signed a certificate stating that 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. The clerk’s record, which includes the plea bargain agreement and the trial court’s Rule 25.2(a)(2) certification, 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 court gave appellant notice that the appeal would be dismissed unless written consent to appeal and an amended trial court certification showing she has the right to appeal were made part of the appellate record within thirty days. See 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). Appellant’s appointed appellate counsel filed a written response, stating she has reviewed the record and can find no right of appeal. After reviewing the record and counsel’s notice, we agree 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). We therefore dismiss this appeal. TEX. R. APP. P. 25.2(d).

PER CURIAM

Do Not Publish