District Court of Harris County, Trial court case number:
pleaded guilty, without an agreed recommendation as to
punishment, to the first-degree felony offense of aggravated
robbery by threat with a deadly weapon. The trial court
subsequently found appellant guilty as charged and sentenced
him to thirty years' imprisonment. The trial court's
certification of appellant's right to appeal states that
"the defendant has waived the right to appeal."
State has filed a motion asserting that the record is
insufficient to support the certification, and requesting
that this Court abate the appeal and remand for the trial
court to determine whether appellant has waived his right to
appeal. We grant the motion.
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 Tex. R. App. P. 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 Tex. R. App. P. 25.2(f), 34.5(c)(2),
37.1, 44.4; see also Dears v. State, 154 S.W.3d 610,
615 (Tex. Crim. App. 2005).
underlying case, appellant was charged with committing
aggravated robbery by threat with a deadly weapon on June 9,
2016. Following appellant's guilty plea, the State
dismissed a separate case, cause number 1544284, in which
appellant was charged with committing another aggravated
robbery by threat with a deadly weapon on December 18, 2016.
The plea agreement in the record does not state that the
latter case was dismissed as part of the plea agreement, but
the record includes (1) appellant's Motion for New Trial,
stating that appellant and the State "entered into an
agreement, among other things, that for [appellant's]
guilty plea in Cause No.1519293 . . . the District Attorney
would dismiss the charges against [appellant] in Cause No.
1544284 . . ., and the two further agreed to allow [the trial
court] to sentence [appellant] without any agreed
recommendation from the District Attorney" and (2) a
case reset form stating that the State made a plea offer to
appellant of "PSI on 1 DISM 1"-i.e.,
that appellant would plead guilty and have a PSI hearing on
one aggravated robbery case, and the State would dismiss
appellant's other case.
defendant may waive his right to appeal as a part of a plea
even when sentencing is not agreed upon, where consideration
is given by the State for that waiver. Ex parte
Broadway, 301 S.W.3d 694, 699 (Tex. Crim. App. 2009).
But, as the State asserts in its motion, "there is no
indication in appellant's plea paperwork, elsewhere in
the Clerk's Record, or anywhere in the Reporter's
Record that appellant waived his right of appeal as part of
his plea agreement with the State to plead guilty in one
aggravated robbery case and be sentenced by the trial court
following a PSI hearing in exchange for the State dismissing
appellant's other aggravated robbery case."
we abate the appeal and remand the cause to the trial court
for further proceedings. The trial court shall within 20 days
conduct a hearing at which a representative of the Harris
County District Attorney's Office and appellant's
counsel, 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
direct the trial court to:
1) Make findings regarding whether appellant waived his right
to appeal and whether the action in cause number 1544284 was
dismissed as consideration for appellant's waiving his
right to appeal;
2) If necessary, execute an amended certification of
appellant's right to appeal indicating whether or not
appellant has the right to appeal; and
3) Make any other findings and recommendations the trial
court deems appropriate.
See Tex. R. App. P. 25.2(a)(2), (d), (f),
34.5(a)(12), (c)(2), 37.1.
court coordinator of the trial court shall set a hearing date
no later than 30 days from the date of this order and notify
the parties and the Clerk of this Court of such date. The
trial court clerk is directed to file a supplemental
clerk's record containing the trial court's the
certification of appellant's right to appeal and any
other findings, recommendations, and orders of the trial
court with this Court within 30 days of the date of the