Miguel E. Feraudy.
The State of Texas
District Court of Harris County Trial court case number:
Russell Lloyd Judge
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.
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.
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).
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.
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.
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
(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 ...