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Feraudy v. State

Court of Appeals of Texas, First District

March 9, 2017

Miguel E. Feraudy.
v.
The State of Texas

         178th District Court of Harris County Trial court case number: 1512124

          ORDER

          Russell Lloyd Judge

         Without an agreed punishment recommendation from the State, appellant, Miguel E. Feraudy, pleaded guilty to the felony offense of violation of a protective order, and the trial court assessed his punishment at confinement for eight years. The trial court executed a certification of appellant's right to appeal, stating that this "is a plea-bargain case, and the defendant has NO right of appeal." Appellant filed a notice of appeal that his retained counsel, Antonio Benavides, signed.

         The trial court's certification of appellant's right to appeal is defective. The certification states that this is a plea-bargain case, but the record contradicts the certification. See Tex. R. App. P. 25.2(a)(2) (stating plea-bargain case is "case in which a defendant's plea was guilty or nolo contendere and punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant"). Although he pleaded guilty, the record reflects that appellant pleaded guilty without an agreed recommendation as to punishment. Accordingly, this case is not a plea-bargain case.

         The Texas Rules of Appellate Procedure require us to dismiss an appeal unless the record contains a written certification showing that the appellant has the right of appeal. See id. 25.2(d). The rules also permit amendment of a defective certification and prohibit us from dismissing an appeal based on the lack of a valid certification when we determine that an appellant has a right of appeal. See id. 25.2(f), 34.5(c)(2), 37.1, 44.4; Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005).

         Further, appellant's retained counsel has filed a motion to withdraw as appellant's counsel, representing that appellant has not employed Benavides to represent appellant on appeal. See Whitehead v. State, 130 S.W.3d 866, 879 (Tex. Crim. App. 2004). The motion does not indicate whether appellant has obtained substitute counsel, and the record filed in this Court does not indicate whether he has been admonished regarding the dangers and disadvantages of proceeding pro se or made an intelligent and voluntary waiver of his right to counsel on appeal. See Tex. Code Crim. Proc. Ann. art. 1.051(a), (f) (West 2016); Whitehead, 130 S.W.3d at 879; Goffney v. State, 843 S.W.2d 583, 584-85 (Tex. Crim. App. 1992); Hawkins v. State, 613 S.W.2d 720, 722-23 (Tex. Crim. App. 1981).

         Accordingly, we abate the appeal and remand for the trial court to immediately conduct a hearing at which a representative of the Harris County District Attorney's Office and appellant's counsel, Antonio Benavides, shall be present. Appellant shall also be present for the hearing in person or, if appellant is incarcerated, at the trial court's discretion, appellant may participate in the hearing by closed-circuit video teleconferencing.[1]

         The trial court shall have a court reporter record the hearing. We direct the trial court to make appropriate written findings of fact and conclusions of law and sign any necessary orders on these issues:

(1) whether appellant wishes to pursue this appeal;
(2) determine whether appellant's retained counsel, Antonio Benavides, should be allowed to withdraw from representing appellant on appeal;
(3) if retained counsel is allowed to withdraw, determine whether appellant is now indigent and entitled to appointed counsel;
(4) if appellant is indigent:
a. appoint counsel to represent him on appeal, at no expense to appellant; and
b. order the court reporter to file the reporter's record with this Court, at no ...

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