Ace Allen Kretzer Sr. v. State

In The Court of Appeals

Ninth District of Texas at Beaumont

____________________ NO. 09-12-00081-CR ____________________

ACE ALLEN KRETZER, SR., Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 1A District Court

Newton County, Texas Trial Cause No. ND 6583

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MEMORANDUM OPINION Pursuant to a plea bargain agreement, Ace Allen Kretzer, Sr. pleaded guilty to aggravated sexual assault of a child. The trial court accepted the plea agreement, sentenced Kretzer to thirty years in prison, the maximum sentence according to the plea agreement, and noted the State’s agreement to dismiss other pending cases against Kretzer. Kretzer subsequently filed a motion for new trial, in which he argued that his plea was involuntary because he pleaded guilty under duress, threats, coercion, and fear for the safety of his family members. At a hearing on the motion, Kretzer testified that his attorney and other individuals made him feel that he had no choice but to plead guilty. The trial court denied Kretzer’s motion.

Kretzer’s appellate counsel filed a brief that presents counsel’s professional evaluation of the record and concludes the appeal is frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). On April 19, 2012, we granted an extension of time for Kretzer to file a pro se brief. We received no response from Kretzer.

We have reviewed the record and find that we lack jurisdiction over Kretzer’s appeal. The trial court’s certification states that this is not a plea-bargain case, but the record reflects otherwise. See Tex. R. App. P. 25.2(a)(2); see also Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003). Because the certification is contrary to the record, it is defective. See Dears v. State, 154 S.W.3d 610, 614-15 (Tex. Crim. App. 2005); see also Saldana v. State, 161 S.W.3d 763, 764 (Tex. App.—Beaumont 2005, no pet.). Accordingly, we dismiss the case for lack of jurisdiction. See Tex. R. App. P. 25.2(a)(2).

APPEAL DISMISSED.

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STEVE McKEITHEN

Chief Justice Submitted on October 1, 2012 Opinion Delivered October 10, 2012 Do Not Publish Before McKeithen, C.J., Gaultney and Kreger, JJ.